
    William H. Bell, Plaintiff, v. Frank B. Mills, Defendant.
    
      Nonsuit — it cannot he granted hy the trial court on the theoi'y that the plaintiff is untruthful—-what express warranty as to seed does not cover the presence therein of mustard seed — implied warranty.
    
    While the trial court and the Appellate Division may set aside a verdict as contrary to the evidence, the trial court has no power to grant a nonsuit upon the theory that certain evidence given on behalf of the plaintiff is untruthful.
    Where a seed grower’s catalogue contains the following provision: “My Guarantee. I guarantee that all seeds * * * sent outfrgm my establishment shall reach the purchaser, * * * in good condition, be fresh and true to name, to grow if properly planted, and if such should not prove the caee, I will refill the order, free of charge, providing sufficient proof is given me within a reasonable time. I cannot guarantee crops, and will not be held responsible for them,” followed by a quotation of the price of a particular kind of seed oats headed “ Price of choice stock, well cleaned,” the express warranty contained in the catalogue and the redress provided for a breach thereof do not extend to a defect in the seed oats arising from the presence of mustard seed therein; in sucha case a warranty that the seed oats were free from mustard seed will be implied.
    Motion by the plaintiff, William H. Bell, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon a nonsuit directed by the court after a trial at the Niagara Trial Term.
    
      D. E. Brong, for the plaintiff.
    
      Ceylon II. Lewis and Will B. Crowley, for the defendant.
   Williams, J.:

The plaintiff’s exceptions should be sustained and a new trial granted, with costs to plaintiff to abide event.

The action was brought to recover damages for breach of warranty upon the sale of seed oats. The case has been in this court before upon an appeal from a judgment for plaintiff entered upon the verdict of a jury. That judgment was reversed, and a new trial granted (see 68 App. Div. 531). Upon a second trial the court, without permitting a cross-examination of most of the plaintiff’s witnesses, and without waiting for the defendant to put in any evidence whatever, invited a motion for nonsuit and granted it at once, upon the theory that he was thus following the decision of this court upon the former appeal. This was an unfortunate disposition of the case because, upon this motion to set aside such non-suit and grant a new trial, the case must be considered and determined upon an entirely different statement of the facts and an entirely different rule must govern our action than upon the former appeal. Upon the second trial the plaintiff gave very different evidence from that given by him on the first trial as to material facts stated in our former opinion, and the trial court had no power to pass upon his truthfulness in making such change. His credibility upon the second trial was for the jury, and could not be taken from them and determined by the court. While the court at Trial Term or in the Appellate Division may set aside a verdict as contrary to the evidence after the verdict has been rendered, the trial court cannot grant a nonsuit, based upon a disregard of any evidence as untruthful. (Williams v. D., L. & W. R. R. Co., 155 N. Y. 158.)

Upon the first trial the evidence showed that the plaintiff at the time he received the oats, and before he sowed any of them, took the card found in the oats and read it. Ho suggestion was then made that he did not read the whole of its contents. On the second trial he testified that he did not at that time observe or read the part of the card near the bottom, and in smaller type, and that he knew nothing of that until long after the oats were all sowed. Upon the first trial the evidence showed little or no examination by the plaintiff of the oats when he received them and before they were sowed, merely that he took some up in his hand, and let them run off into the bag. On the second trial, both he and his witnesses testified in great detail to the care used by them in examining the oats before they were sowed. On the first trial it appeared that the most casual examination of the oats would disclose the presence of the foreign seeds therein. Upon the second tidal it was shown that they were not discovered until nearly all the plaintiff’s oats had been sowed, though very carefully examined by the plaintiff and his witnesses. So that while the facts, as stated in our former opinion, were that the card in the oats was read by the plaintiff when he received the oats, and the foreign seeds could have been discovered before the oats were sowed, by the most ordinary and casual examination, and little or no examination was in fact made before the sowing was done, none of these facts upon this motion can be regarded as settled, but the very contrary must be assumed. They were all questions of fact for the jury, and we must assume for the purpose of this motion that the jury would have found the facts directly the contrary of those stated in our former opinion.

It is said, however, as to the fine pz-int upon the cards found in the oats, that it was there and the plaintiff was bound to read it and to know what it was. The claim znade by the plaintiff is that he did not know or understand that this fine print upon the bottom of the card was designed to be a contract binding upon the parties, containing the terms and conditions upon which the oats were to be accepted by him and sowed. If the fine print matter was to be regarded as such a contract, it must have been assented to by the plaintiff, otherwise the minds of the parties did not meet, and under all the circumstances it could hardly be held as a matter of law that he was bound to know or understand that it was intended as such a contract and to read or know its contents.

It was very likely a question for the jury whether, coming to him as it did, he was bound to read it and know its contents, and that receiving it and accepting the oats without objection amounted to an assent to the terms thereof as a contract under which the oats were accepted and sowed. (Blossom v. Dodd, 43 N. Y. 265.)

We cannot, therefore, upon this motion regard the fine print upon this card as a part of the contract between the parties as we did do on the former appeal.

We must determine this motion then upon the revised statement of fact indicated by the foregoing suggestions, and the question now involved may accordingly be stated as follows : The oats having been purchased for sowing, having contained a considerable quantity of mustard seed, which could not be discovered by an ordinary inspection or examination before sowing, more than an ordinary inspection and examination having been made by the plaintiff before sowing the same, and he not having discovered the presence of the mustard seeds, the seeds having been discovered after most of the oats had been sowed, but not even then known to be mustard seeds, the remainder of the oats having been sowed, and the discovery that they were mustard seeds not having been made until the crop came up from the ground, the oats having been sold under the statements made in the catalogue and delivered to and accepted by the plaintiff under the statements in such catalogue alone, was there a warranty of the oats expressed or implied as to the presence of mustard seeds therein which survived the acceptance and sowing of the oats, of which there was a breach so as to permit the recovery by the plaintiff of damages therefor ? The defendant in the catalogue said: My Guarantee. I guarantee that all seeds * * * sent out from my establishment shall reach the purchaser, * * * in good condition, be fresh and true to name, to grow if properly planted, and if such, should not prove the case, I will refill the order, free of charge, providing sufficient proof is given me within a reasonable time. I cannot guarantee crops, and will not be held responsible for them,” and then in advertising this particular kind of oats in a subsequent page of the catalogue, in giving the price of the same, he said, “ Price of choice stock, well cleaned,” etc:, and the plaintiff paid the price so stated for the oats in question. The catalogue did, therefore, contain an express warranty that the oats were “ in good condition, * * * choice stock, (and) well cleaned ” when delivered to the plaintiff, and for a breach of this warranty the defendant prescribed the redress which the plaintiff would be entitled to, to wit, the refilling of the order upon giving sufficient proof of the breach in a reasonable time, and he added that he would not guarantee the crop and would not be responsible therefor.

In the absence of the printed matter upon the card, however, and considering the matter in the catalogue alone, it can hardly be said that this warranty covered the defect here complained of, the presence of mustard seeds in the oats. Hone of these words, used as they were, fairly implied that the defendant referred to the purity of the seeds, the freedom from noxious seeds, as the language upon the card clearly did. The words used in the catalogue were, at best, of doubtful meaning, and could not be regarded as notifying the plaintiff that they had so limited defendant’s liability as to require the plaintiff to look specially for the presence of noxious seeds, or else lose all right to redress for the presence thereof in the oats, except to have his order refilled. The express warranty in the catalogue, and the redress provided for a breach thereof, did not extend to the defect here complained of. In the absence of such an express warranty there can be no doubt that one would be implied. (White v. Miller, 71 N. Y. 118.) And under the facts appearing in this record, as we must assume them to be, there is no reason why it should be said as a matter of law that such warranty did not survive the acceptance and sowing of these oats by the plaintiff. ¡Nor are we willing to say upon the facts now appearing and under the contract here involved, that a sowing of a small quantity of the oats, after he discovered the presence of some foreign seeds therein, the plaintiff having no knowledge as to their character, operated as an acceptance of the oats under the contract which the implied warranty did not survive, and, therefore, no recovery could be had for the damages sustained by the use of such oats at least as he had already sowed. The oats delivered to his son it appears were purchased for him and no damages are sought in this action by reason of the sowing thereof.

The views hereinbefore expressed lead us to conclude that the plaintiff’s exceptions should be sustained and the motion for a new trial granted, with costs to the plaintiff to abide event.

Adams, P. J., McLennan, Spring and Hiscook, JJ., concurred.

Plaintiff’s exceptions sustained and motion for new trial granted, with costs to the plaintiff to abide event.  