
    J. Aron & Company, Inc., Respondent, v. Howard L. Sills et al., Doing Business under the Name of John S. Sills & Son, Appellants.
    (Argued March 3, 1925;
    decided March 31, 1925.)
    
      Sale — warranty — sale of goods by description — warranty that goods. were of merchantable quality — condensed milk unfit for consumption does not comply with warranty — seller may not complain if jury is told that more limited warranty existed.
    
    Irrespective of whether an implied warranty existed that condensed milk sold by defendants to plaintiff was fit for human consumption, where it was bought by description, there was a warranty that it was of merchantable quality which is not complied with if unfit for consumption. The seller, therefore, may not complain in an action by the purchaser to recover for breach of warranty if the jury is told there was an implied warranty that the goods were fit for human consumption, such a warranty being more limited in its scope than the one that in fact existed.
    
      Aron & Co., Inc., v. Sills, 211 App. Div. 21, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 1, 1924, affirming a judgment in favor of plaintiff entered upon a verdict.. The action was to rfecover for breaches of warranties in connection with the sale for export of two lots of canned condensed milk. It appeared that the milk became fermented, unfit for human consumption and commercially useless.
    
      Isaac N. Mills and George Ryall for appellants.
    
      B. F. Norris for respondent.
   Per Curiam,.

This judgment must be affirmed. Doubtless the purpose for which these goods were required was at least by implication made known to the seller. Whether under the circumstances of this particular purchase any inference is possible that the buyer relied upon the seller’s skill or judgment we deed not decide. For even were the trial court in error as to the existence of an implied warranty that the goods in question were fit for human consumption, bought as they were by description from one who dealt in them, there was a warranty that they were of merchantable quality. If condensed milk is unfit for consumption, clearly it does not comply with this warranty. The seller may not complain if the jury is told that a warranty exists more limited in its scope than in truth is the fact.

His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ., concur.

Judgment affirmed, with costs.  