(dissenting). The record discloses that this action was fairly and fully tried. The transcript consists of about 500 pages. The only reason found for a reversal of this case by the majority opinion is the giving of an instruction by the trial court concerning an express warranty. I am of the opinion that this instruction as given upon this record was not prejudicial error.
*212The answer in defense alleges that Walters warranted the cattle to be in good condition, in perfect health and free from disease, and to be in every way all right and in all respects suitable for the establishment and conducting of a herd for purposes of breeding pure-bred Aberdeen Angus registered cattle; that the cattle were not in good condition, perfect health, and free from disease^ and were not all right, but in truth and in fact were in bad condition, in imperfect health, and diseased, and a large portion of them were affected with dr subject to tuberculosis.
The testimony concerns, almost entirely, the question of whether or not these cattle were affected with tuberculosis when sold. The sole issue accordingly was that of an express warranty and a breach thereof. The appellants contend that under the instruction of the trial court (cited in the majority opinion) the jury were required to find that the word “tuberculosis” was expressly mentioned by Walters, in order to permit recovery by the appellants; that in effect this instructed the jury that a general warranty of soundness would not be sufficient to cover the disease of tuberculosis. The majority opinion practically adopts such contention. I am of the opinion that this is a narrow, technical, and unreasonable construction to be given the instruction of the trial court. The claimed breach of warranty was by reason of the disease of tuberculosis. No other deficiencies in respect to the cattle are asserted in the record. Otherwise the court charged the jury:
“If you find from the evidence that the cattle were warranted to be free from the disease, and that there was a breach thereof in accordance with the instructions I have already given you, and you find that the bull was free from the disease,” etc., “then the defendant may be allowed damages therefor,” etc.
Again the court instructed:
“Should you find from the evidence in this case that no representations were made by Walters in this case amounting to an express warranty that the cattle were free from the disease complained of in this suit, then it would be your duty to return a verdict in favor of the plaintiff,” etc.
Assuredly, under these instructions, if Walters represented or warranted the cattle to be all right in response to the request of the appellants that they wanted a nice, clean, and healthy herd, the jury were amply warranted in finding that this was a representation and warranty that such cattle were not affected with tuberculosis.
The trial court particularly instructed that the decisive test of the *213warranty was whether Mr. Walters stated that the cattle were free from the disease of tuberculosis, etc., or that he used such language or words which would leave such an impression in the minds of the defendants. This court has held frequently that the instructions must be taken together, and, if when considered together they fairly present the law, they will not be condemned because one alone may not be complete in itself. Munster v. Stoddard, 170 N. W. 871; McGregor v. G. N. R. Co., 31 N. D. 471, 488, 154 N. W. 261, Ann. Cas. 1917E, 141. Furthermore, if Walters represented the cattle to be all right, in response to appellants’ request for a nice, clean, and healthy herd, such language necessarily meant that they were free from the disease of tuberculosis. In Mitchell v. Pinckney, 127 Iowa, 696, 104 N. W. 286, the vendor warranted the animals to be all right and sound in every particular. The sole contention made for breach of the warranty was that the cattle were affected with “contagious abortion.” In one of the instructions of the court the jury was told that if there was a warranty of any or all of the cattle, and the warranty was substantially as claimed in the petition, and had been broken, the defendant would be liable. The contention was made that the jury was not limited to the particular breach relied upon. The court held that such contention was hypercritical. In my opinion the contention in this regard is likewise hypercritical. The appellants consented to an oral charge by the court. No instructions were requested by the appellants. No objection was made to the instructions as given. No request was made for a more specific and comprehensive instruction. See McGregor v. G. N. R. Co., 31 N. D. 471, 488, 154 N. W. 261, Ann. Cas. 1917E, 141. Also Huber v. Zeiszler, 37 N. D. 556, 561, 164 N. W. 131. I am of the opinion that the jury was not misled and did not misunderstand the issues by reason of the particular instructions upon which reversal is granted by the majority'Opinion.