Whatever may be the form of action set forth in the complaint—whether it be warranty—or fraud—or a mixture of both—it is clear upon the evidence that no fraud was established; nor was it pretended to be, by the plaintiff. The only question therefore is, was the warranty a general one, that the seed was Bristol cabbage seed, or was it a special one, that it would produce good Bristol cabbage on being sown by the purchaser upon land appropriated by him to the raising of that vegetable ? If the former, then it must be conceded that the judge’s ruling, at the circuit, was at least' sufficiently favorable to the plaintiff; for it not only allowed him the difference between the value of Bristol cabbage seed and the value of the seed actually purchased, but the entire value of a similar quantity of good Bristol cabbage seed. On the other hand, if the seed was sold with a warranty that it should serve the purpose of producing to the plaintiff a crop of good Bristol cabbage upon being sown by him with that object, then a more enlarged rule of damages would be proper.
It was therefore a question of fact. And it is evident from the rulings of the judge that he decided or assumed that the warranty was a general, and not a special one. And I do not see that the plaintiff asked to go to the jury on this question of fact, which I think he ought to have done if he desired to avail himself of the point, afterwards. He offered, it is true, certain evidence as to the amount of damage, some *26of which, it may he conceded, would have been proper if the warranty had been a special one, of the kind above referred to, but was wholly out of place if, as the judge assumed, the warranty was a general one. The plaintiff further requested the court to submit the question to the jury as to the amount of loss, if any, the plaintiff had sustained by the warranty or misrepresentation, and the judge refused. But in this I think there was no error; for there was no misrepresentation; and as to the warranty, there was no occasion to submit the question to the jury as to the amount of loss, if the judge allowed the plaintiff more than, according to the true rule of damages, he could legally require.
But assuming the question to be an open one, as to which kind of warranty it was, I am of opinion that there was no sufficient evidence of a special warranty. It was quite true, upon the evidence, that the plaintiff was a gardener and had been in the habit of buying seeds of the defendant for several years, and that the defendant knew the plaintiff's occupation ; but that does not show the sale of the seed to have been for the purpose of cultivation by the defendant—much less that the warranty was of that character. And assuming that the defendant showed the plaintiff a sample of cabbage the seed would produce, and that this amounted to a warranty, it yet fails to make out that the defendant warranted that the seed, being sowed by the plaintiff upon land devoted to that object, would produce good Bristol cabbage, and that such warranty was made with the knowledge or understanding by the defendant that the plaintiff bought for that purpose and would devote it to that object. There is nothing, I think, that aids the plaintiff, in the fact that the defendant said he knew it to be Bristol cabbage seed, and knew the consequences of a breach of warranty; nor in the subsequent declaration that he would make it right.
This is the substance of the evidence relied on to establish a special warranty; and I think it insufficient to show that the defendant intended a warranty of that description, and *27insufficient to visit upon Mm the extraordinary damages claimed to flow from a breach of this contract. We can scarcely suppose the defendant would have made such a special warranty; especially if he knew, as he said he did, the grave consequences which were to flow from a breach of it.
[Albany General Term, March 5, 1860.I think a new trial should be derned.
New trial granted.
Gould, Hogeboom and Peckham, Justices.]