(dissenting). I dissent. It is undisputed that the potatoes which the defendants agreed to purchase from the plaintiffs were to be marketable potatoes. It was understood that they were to be shipped to Kansas City and placed on the market there. The defendants contend that Halland examined the potatoes in the car, found them to be worthless, and refused to accept them. It is undisputed that the defendants returned the bill of lading to the plaintiff, but that plaintiff refused to accept it. It is also undisputed that the plaintiff dug, hauled, and loaded the potatoes on the 18th, 20th, 21st, and 22d of October, 1913. And the testimony of the plaintiff shows thai eight out of the twelve loads which went into the car were hauled on October 22d. The evidence of disinterested witnesses was to the effect that, before any of the potatoes were dug, the ground had frozen so hard that it was impossible to plow. The weather report made at the State School of Science at Wahpeton, a distance less than 30 miles from where the potatoes were dug and loaded, was offered in evidence, and it shows that the thermometer registered below freezing on each of the days the potatoes were dug and hauled, and that it recorded 22 degrees below freezing on the 22d of October. It seems that under these circumstances, it is more than likely that some of the potatoes were frozen. As already stated the defendant Halland claimed that he examined the potatoes and found them to be frozen. Apparently some of the jurors were of the opinion that some of the potatoes were frozen. After they had retired they returned into court for further instruction. A colloquy then took place between the court and some of the jurors. During the colloquy a juror, Brand, said: “As I understand it, we had to ascertain whether the defendants accepted the carload of potatoes, and the question in my mind was whether they ever did accept the carload of potatoes.” Later, the juror Brand addressed the following inquiry to the court: “If we find that this contract had been accepted *24by the defendant in any way, have we got to allow the full amount, value of the potatoes in that car, for the amount they made the deal for ?”
To this inquiry the court replied: “If you find that there was a contract, then it is for you to determine from the evidence in this case, the value of those potatoes and to give a verdict accordingly. You cannot arbitrarily give a verdict for more, or arbitrarily give a verdict for less. But from the evidence, provided you find that such a contract existed for the sale, upon the one hand and purchase from the other hand, of these potatoes, then from the evidence you are to give a verdict for whatever you deem the testimony shows to be the value of that carload of potatoes. There is no dispute, gentlemen, in regard to the 50 cents per bTishel. There is no dispute in regard to that. But there seems to be some question in regard to two loads of those potatoes. It is for you, gentlemen of the jury, from that contract, that is, provided that you find in favor of the plaintiff in the action, then it is for you to determine from the evidence as to the number of bushels of potatoes in that car, and to figure that number of bushels at 50 cents per bushel, because there is no contention in regard to the 50 cents per bushel. That is agreed upon. But there is some question in regard to the number of bushels in this car.”
Whereupon, the juror Brand made the following inquiry: “Are we allowed to take into consideration the condition of the potatoes in the car ?”
To this inquiry the learned trial court replied: “You may take into consideration the condition of the potatoes.”
Whereupon, the juror Brand further inquired: “If we find they are wholly or partly damaged, can we allow damages then? That is the point I was after when we ca>ne in here."
To that inquiry the court said: “Yes, you should consider all the •evidence.”
To this the juror Brand replied: “I think that covers it all.”
The court said: “Consider all the evidence.”
In connection with what has just been recited, it should be mentioned that the defendants requested the trial court to instruct the jury that potatoes are an article of food, and that the plaintiff had the burden of showing that the potatoes in controversy were fit for food.
As already stated, there was a square conflict in the testimony as to *25•whether the potatoes had been injured by frost. Prom what occurred during the colloquy, it seems clear that at least the juror Brand believed that some of the potatoes were frozen. The question that bothered him was what verdict to return under the circumstances. He said: "If we find they are wholly or partly damaged, can we allow damages then? That is the point I was after when we came in here.” The court answered this inquiry: “Yes.”
It seems to me that under the evidence in the case the final instructions were at least misleading. There was little or no dispute as to the original arrangement between the parties. There was no question but that the plaintiff put the potatoes into the car, and billed it to the defendants at Kansas City. But the defendants had agreed to buy, and the plaintiff had agreed to furnish, marketable potatoes. Plaintiff brought suit. In order to be entitled to recover he must prove that he had complied with the terms of his agreement. He must prove that he had delivered to the defendants what he had agreed to deliver to them. Mechem, Sales, § 1154. Manifestly the delivery of potatoes damaged by frost would not constitute a delivery of what he had agreed to sell and. the defendants had agreed to buy. 35 Cyc. 214, 216; Barrow v. Penick, 110 La. 572, 34 So. 691; D. Rosenbaum’s Sons v. Davis & A. Co. 111 Miss. 278, 71 So. 388. But the court refused to instruct the jury that plaintiff must show that the potatoes delivered were fit for food, and, in response to the inquiry from a member of the jury, he in effect stated that the jury might return a verdict for the plaintiff even though the potatoes which plaintiff had put in the car were in fact frozen. In my opinion a new trial should be ordered.