In a petition for rehearing the defendant contends that the measure of damages stated by the court below in its instructions to the jury was incorrect and inapplicable. The rule laid down in the instruction complained of was that declared in section 3314 of the Civil Code with respect to the damages for breach of warranty of fitness of an article for a particular purpose, the rule including a fair compensation for the loss incurred by an effort in good faith to use it for such purpose. The defendant's criticism is that the warranty shown was an express warranty of quality, only, — that is, that the boxes should be dry, and that this by operation of law excludes an express or implied warranty of fitness. It is sufficient to say on this point that the facts alleged and proven show that in order to make the boxes fit for the use intended it was necessary that they should be dry, and that, therefore, the express warranty made was a warranty both of quality and of fitness for the purpose intended, in which case the rule stated in section 3314 would be applicable. Furthermore, the facts alleged and proven would suffice to create an implied warranty of fitness, and we do not think it is true that the making of an express warranty of quality will exclude an implied warranty of fitness, where the warranty so implied is not only not inconsistent with the express warranty, but entirely in harmony therewith. There was no conflict in the evidence regarding these warranties.
The petition for a rehearing is denied. *Page 392