A careful examination of the evidence in this case, and of the opinions by this court and the court of appeals upon a former appeal, renders it manifest, we think, that the judgment should be affirmed, unless there was a failure to prove a breach of the defendant’s contract of warranty, or to establish damages to the amount recovered by the plaintiff. We are of the opinion that, as to the 85 barrels of tallow for which the plaintiff was permitted to recover damages, there was sufficient proof of a breach of the defendant’s warranty and of the plaintiff’s damages to uphold the judgment. Two barrels of this tallow were melted, and found to contain about 30 per cent, of marble dust. The plaintiff’s evidence was to the effect that her testator had 83 barréis of this tallow on hand March 16, 1884; that every barrel of it that was used after that time was examined; and it was found that in all of them, after tak*793ing the skimmings off the top, which looked all right, and getting Into the barrels, there was grit, and, after going into the barrels, white specks could be seen, and grit could be felt between the fingers. The evidence was also to the effect that, on the bottom of all the kettles in which this tallow7 was melted, there was a sediment similar to that found after melting the two barrels; that 16 or 18 barrels of this sediment, weighing about 500 pounds to the barrel, were taken out of two of the kettles;, and that there was some in the tank below which opened into the drain. It was also proved that the defendant had marble dust, like that found in the tallow melted, in the factory where this tallow was manufactured, and no use for it was shown unless for adulteration.
On the former trial the court charged that the jury was authorized upon the evidence to find that all the tallow sold to the plaintiff’s testator by the defendant except the first five barrels was adulterated, and to award damages therefor. This the court of appeals held was error (26 N. E. 719); and, in discussing that question, Huger, C. J., said:
“So far as the 122 barrels which had been used before adulteration was discovered are concerned, there was no evidence whatever that they were adulterated; but, on the contrary, there was affirmative evidence that a large proportion thereof was free from the admixture of any foreign substance. With reference to the balance of the tallow, there was no positive evidence that any of it was adulterated, except about three barrels.”
On the last trial the court held that as to the 122 barrels the plaintiff could not recover, but as to the 85 barrels the court submitted to the jury the question whether it was adulterated, the extent of such adulteration, and the amount of damages sustained by the plaintiff. If it were admitted that there was no direct and positive proof that all of these 85 barrels of tallow were adulterated, still, we think, the case was properly submitted to the jury, as there were cir‘cumstances shown which rendered it at least quite probable that they were adulterated, and that the plaintiff sustained damages thereby to the amount for which the jury rendered a verdict. This conclusion is not, we think, in conflict with the decision of the court of appeals. It was not held by that court that the evidence was insufficient as to this portion of the tallow, the only statement in regard to it being that there was no positive evidence that any of it was adulterated except about three barrels. It would seem that, if it was then contained in the appeal book, the learned judge who wrote the opinion must have overlooked the evidence of the plaintiff’s witnesses to the effect that every barrel of this tallow used was examined, and this foreign substance found, which could be seen and felt after getting through the skimming upon the top. As the evidence now stands, we are of the opinion that it was sufficient to justify the submission to the jury of the questions submitted, and to uphold the verdict.
No further consideration of the questions in this case seems necessary, as they are fully discussed in the opinion of PARKER, J., delivered at special term, in which we concur.
Judgment and order affirmed, with costs. All concur.