There was a contest at the trial as to whether the words, “ and warranted perfect,” in the memorandum containing the warranty, were inserted therein before or after the same was signed; and the testimony was conflicting on the subject. But the question was fairly submitted to the jur*y, who found the issue for the plaintiff, and that finding is con-*363elusive. TIence it is a verity in the case that tlie writing in its present form contains tlie warranty made by tbe defendants.
It is not disputed tbat tbe complaint states a cause of action, and a careful examination of tbe bill of exceptions satisfies us tbat there is testimony tending to prove every material allegation in tbe complaint, and to sustain tbe assessment of. damages. Hence tbe verdict and judgment cannot properly be disturbed, unless there was error in tbe rulings of tbe court.
Tbe only errors assigned relate to tbe charge which tbe court gave tbe jury. It is claimed tbat they were charged incorrectly in several particulars, and tbat an instruction proposed on behalf of tbe defendants, and which tbe court refused to give, should have been given.
Tbe instruction refused isas follows: “It devolved upon tbe plaintiff to show by downright evidence tbat these tomatoes were injured by defects in the jugs.” Tbe court instructed tbe jury tbat all disputed facts in the case were to be determined by tbe preponderance of testimony. If tbe term “ downright evidence,” means a preponderance of evidence, tbe instruction was given. If it does not, tbe instruction was properly refused; for there can be no doubt tbe court gave tbe correct rule of law on tbe subject.
Tbe material portions of the charge to tbe jury to which exceptions were taken, are as follows: “ Tbe defendant admits tbat he warranted these j ugs to this extent, that they were good, sound, merchantable, and capable of holding any liquid in common use. * * * If tbe jugs were purchased with 1he information to tbe seller tbat they were designed to put up tomatoes in, and tbe seller warranted them to be sound, good, merchantable, and capable of bolding tomatoes, and tomatoes were put in them, and, in consequence of the defects in tbe jugs, not being good, not being sound, not being merchantable, not capable of bolding tomatoes, tbe plaintiff would be *364entitled to recover for the injury which he has sustained, and which would include the loss to him in consequence of the tomatoes spoiling. Or if you should find the words ‘ capable of holding any liquid in common use,’ to include tomatoes, the rule would be the same as if they were expressly warranted to hold tomatoes. The plaintiff claims they were warranted perfect. It is for you to say what this warranty is. The plaintiff claims that they were warranted to hold tomatoes— cooked tomatoes. * * * What did the plaintiff want the jugs for? Did the defendants know what lie he wanted them for? * * * Then if yon should find that they were not warranted to hold tomatoes, they admit that they warranted them to hold any liquid in common use. * * * The plaintiff says the tomatoes were cooked until they were liquid, and there is no dispute about that; no evidence on the part of the defendant that they were not properly cooked. I have heard no evidence given on the part of the defendants that they were not properly selected. * * * It is for you to say. * * * If it was in consequence of the defective jugs, and they were warranted to hold the tomatoes, or were warranted in such a way as to cover that use of them, that is, warranted to be good, sound and merchantable, and to hold liquids in common use, now if that covers the use of tomatoes (and it is for you to say if it does cover that use), and 'they spoiled in consequence of defects in the jugs, why then the plaintiff is entitled to recover.”
The jury were further instructed that the plaintiff was hound to use ordinary cave in discovering the defects in the jugs before he put the tomatoes i into them, and that, if he failed to do so, he could not recover for the loss of the tomatoes.
We are unable to discover any error in the foregoing instructions. It being settled by the verdict that the defendants warranted the jugs perfect, if they knew the use to which the plaintiff intended to put them and for which he made the purchase, obviously the jugs were not perfect within the mean*365ing of tbe contract, and there was a breach of tbe warranty. There is evidence in tbe case tending to show that tbe defendants knew at tbe time of the sale tbe use to which tbe plaintiff intended to put tbe jugs; and this evidence was properly submitted to tbe jury as explanatory of tbe scope and meaning of tbe written contract of warranty. We think all of tbe statements of fact in tbe charge are supported by tbe pleadings and proofs, and that tbe learned circuit judge laid down tbe law of tbe case correctly.
By the Oourt.- — Judgment affirmed.