(concurring):
On the former trial of this action the question of an implied warranty was submitted to the jury and that of an express warranty was withdrawn from them by the trial court. It was held on appeal that the proofs did not justify the finding of an implied warranty, and the judgment was reversed. (158 App. Div. 461.) On that trial the only evidence as to the trade meaning of the words “seed oats” was given by the defense, and remained uncontradicted. We were of opinion that under the proofs so given the oats delivered by the defendant answered to the description of “seed oats.” On the new trial, however, the plaintiff has given some evidence that “sulphured oats” would not correspond to the trade description of “ seed oats.” This fact distinguishes the present appeal from that before us formerly. I will not contend with my brother Jerks whether this circumstance results in a breach of an express warranty, for in any event it tends to show a breach of at least an implied warranty of correspondence between the thing bought by description and the thing delivered. (See cases cited in former opinion.) I concur for reversal and a new trial.
Burr, J., concurred.
Judgment reversed and new trial granted, costs to abide the event.