Defendants sent to plaintiff an invoice for “15 barrels of spring whisky,” writing, “ We will be glad to forward you warehouse receipt on receipt of check.” Plaintiff sent the check. This constituted a contract for the sale, not of a mere warehouse receipt, but of whisky. The warehouse receipt recited that the packages “ were said to contain whisky.” This recital did not impair the seller’s obligation to deliver whisky. When the barrels were taken out of the warehouse they were found to contain ninety-five per cent water and five per cent alcohol. Plaintiff sues for damages caused by the delivery to him of water instead of whisky. His complaint was dismissed. There is evidence that on February 20, 1920, the gauger’s report showed whisky in the barrels; that on March 20, 1920, the barrels were delivered to the warehouse; that between that time and the regauging which showed the substitution they remained in the warehouse; that it was a *681bonded warehouse which nobody could enter excepting in the presence of the United States gauger, who testified that in fact nobody had access to the barrels save in his presence and he had no knowledge of the substitution. While this testimony does not negative conclusively the possibility that the substitution occurred after delivery of the warehouse receipt, it suffices to make the question one of fact for the jury. . .
Judgment reversed and new trial ordered, with costs to appellant to abide the event.
Guy and Btjee, JJ., concur.
Judgment reversed.