The only litigated question in this case is the right of the defendant to an allowance by way of coun*649ter claim for the price of thirty-five boxes of what is called “ shaddock'/’ which is the fruit of a tropical tree, having no marketable value, and which the defendant alleges was sold to him by the plaintiff as grape fruit. The facts are substantially as follows: On ¡November 24, 1903, the plaintiff had, in front of his store, a load of boxes which had been consigned to him from Florida as containing grape fruit. The defendant’s buyer, one Lyons, came along and asked the plaintiff “what he had.” The plaintiff replied, that he “ didn’t exactly know what it was.” Plaintiff then told Lyons to examine the boxes and Lyons opened two or three and, stating that they contained grape fruit, made an offer for the lot which consisted of seventy-one boxes, the price offered being three dollars and fifty cents per box for thirty-five boxes, and three dollars per box for sixteen boxes, it being estimated that about sixteen boxes contained a species known as “ Russetts,” which is an inferior quality of grape fruit. There is not the slightest doubt but that the parties believed that all the boxes contained grape fruit. The goods were billed to the plaintiff as grape fruit, Lyons told the plaintiff that he wanted to buy grape fruit; the plaintiff made out a sales ticket, a call card tó be given to the driver of the truck that subsequently called for the boxes, and he entered the transaction on his books and rendered a bill to the defendant, in each of such exhibits designating the fruit as grape fruit.
It was admitted upon the trial that the custom, in the ¡New York market, among buyers and sellers of fruit is to sell fruit in bulk by sample boxes opened, the purchaser, opening a few boxes and then making his offer according to the sample. This was the course pursued by the defendant’s buyer. Both parties had been engaged in the business for many years and were aware' of such custom. The fruit was delivered to the defendant’s store the same day, and the next morning it was discovered that thirty-five boxes of the seventy-one contained “ shaddock,” which it was conceded upon the trial is not grape fruit, has no market value and is worthless. The defendant on the same day offered to return the shaddock to the plaintiff, but he absolutely *650refused to accept it. Subsequently, a few days later, defendant offered to return all the fruit to plaintiff, which offer was refused, as was also a check for fourteen dollars, the price agreed upon for the seventy-one boxes, less the thirty-five containing the worthless fruit. The plaintiff then sued for the purchase price of the lot sold defendant, the defendant setting up the counterclaim for damages as to the thirty-five boxes, which counterclaim was dismissed by the court upon the trial, and the plaintiff recovered judgment for the full amount of his claim, from which judgment the defendant appeals.
The claim of the plaintiff is that he never represented the boxes to contain grape fruit, and did not know whether the fruit was grape fruit, or not. Possibly he did not so state, in words, but the circumstances surrounding the transaction show conclusively that both parties regarded all of the boxes as containing grape fruit, and that it was grape fruit that was being sold and bought. The plaintiff makes no statement as to what actual knowledge he had as to the contents of the boxes, but he states that Lyons, the defendant’s buyer, told him (plaintiff) that he wanted grape fruit and that what he (plaintiff) sold to Lyons “was supposed to be grape fruit.” The plaintiff was present when Lyons opened the boxes regarded as samples. The rule of caveat emptor, invoked by the plaintiff, has no application here. The doctrine that a bargain and sale of a chattel of a particular description imports a contract or warranty that the article sold is of that description is sustained by a great weight of judicial authority. White v. Miller, 71 N. Y. 118, 129 ; Hawkins v. Pemberton, 51 id. 198. Had the defendant counterclaimed for damages by reason of the quality or. condition of the fruit bought by him, another situation would have presented itself. Suppose, upon opening the boxes, the defendant had discovered that thirty-five of them contained sand or waste paper, or were empty, could it be claimed that, having purchased according to the custom of the market, seventy-one boxes of fruit by sample, the plaintiff could recover for boxes containing nothing of value? Certainly not.
*651The charge to the jury was erroneous. It was to the effect that the only question to be considered by them was whether the plaintiff knowingly and consciously sold the fruit with intent to deceive the defendant. The defendant made no such claim. The defendant’s claim was that there was an express or implied warranty by plaintiff that the fruit sold was grape fruit. Proof of plaintiff’s intent was not necessary to enable the defendant to recover upon his counterclaim, if he proved the essentials of a warranty, of which intent is not a necessary ingredient.
The claim of the plaintiff that the defendant’s failure to promptly return the fruit is fatal to his recovery is not borne out by the record. Whether or not such course was necessary under the circumstances of this case need not be determined, as the proof shows that, immediately upon discovering the worthless character of the fruit', the defendant did say to plaintiff, “ I have got some shaddock there and I am going to send it back.” I said, “ I won’t accept, it.” This was notice to the plaintiff that the return of such fruit would not be accepted and relieved him from any further offers in that direction. Moreover, the shaddock was conceded to be worthless and a return to plaintiff would have served no useful purpose, and subsequently an offer to return all the fruit was also rejected.
The defendant is not- chargeable with lack of due diligence in failing to examine all of the boxes at the time the sale was made. The plaintiff’s counsel proved, on cross-examination of the defendant’s buyer, that it was not the custom of the trade, in buying fruit in bulk, to open every box purchased, and that the buyer in this case would not have been allowed to do so.
Leveutritt and Greeubaum, TJ., concur.
Judgment reversed, new trial ordered, with costs to appellant to abide event.