
    Leander D. Lovell, Respondent, v. Lee T. Alton, Appellant.
    (Supreme Court, Appellate Term, First Department,
    November, 1913.)
    Sales — warranty — action to recover for goods sold and delivered — parol evidence.
    In an action to recover for coal sold and delivered on a written order which did not in express terms contain any warranty, . parol evidence is admissible to show a warranty as to quality.
    Appeal by defendant from a judgment of the City Court of the city of New York entered in favor of the plaintiff for $782.73, besides costs, upon the verdict of a jury.
    Leo Oppenheimer, for appellant.
    Arthur Lovell, for respondent.
   Guy, J.

The action is brought to recover for coal sold and delivered.

The defense was a breach of a warranty that the coal agreed to be delivered was Scranton coal, and the coal actually delivered was Wilkosbarre coal, an inferior grade; also that it was adulterated and mingled with stone and slate. There was also a counterclaim for breach of the warranty.

The coal was purchased as the result of a. written order of the defendant, which was not accepted in writing by plaintiff. The order did not in.express terms contain any warranty. The trial justice excluded all proof of the warranty alleged in:the answer, defendant excepting, and instructed the jury that the law implies a warranty that the coal was good, merchantable coal that would burn.

"So much • of defendant’s proof . as was. admitted showed that the coal was not Scranton coal; that it was mixed up with dirt, stone and slate. Defendant testified that of every 1,000 pounds of one lot,it burned, 750 pounds of slate, dirt, stone and ashes would be left behind. Defendant claimed that only twenty-five per cent, of it burned. Proof as to how little heat it produced was excluded, defendant excepting; proof of an analysis of it by a practical, though not a graduated, chemist was excluded, defendant excepting. Proof by an analytical chemist and fuel engineer that it was twenty per cent, deficient in heating power was received. •

A written order for goods, which does not contain the complete contract, permits parol proof of a warranty as to quality. Brigg v. Hilton, 99 N. Y. 517, 526, 527; Lichtenstein v. Rabolinsky, 75 App. Div. 66-68; Guttentag v. Whitney, 79 id. 596, 599, 600.

Where the original contract is oral and entire, and part only is reduced to writing, parol evidence is admissible. Chapin v. Dobson, 78 N. Y. 74, 79; Routledge v. Worthington Co., 119 id. 592, 596-598.

The cases cited by the respondent are cases where the writing contained the entire contract. In the bought and sold note cases which respondent especially relies on, the entire contract is contained in the note.

Seabtjry and Bijur, JJ., concur.

Judgment reversed and new trial granted,- with costs to appellant to abide event.  