
    Thomas J. Davis and Henry L. Quick, Respondents, v. The Oakland Chemical Company, Appellant.
    Second Department,
    July 23, 1907.
    Sale — implied warranty — evidence — quality of goods.
    When in an action to recover damages for. the breach of an implied warranty on a sale of bleaching powder, the use of which injured the buyer’s goods, the defendant has shown that it has used the bleach on the same material with good results, it is error to exclude evidence .to show that the bleach used in the test by the defendant did not differ from that sold to the plaintiff.
    In such action it is error to exclude evidence by the defendant that-the bleaching preparation was used on similar material with good results on the ground, that- it is cumulative because the plaintiff had stipulated that the. bleaching preparation if properly made could be used with good result's, when there is no such stipulation hvthe record except a concession that the preparation would bleach.'‘‘a certain class of goods.”
    Gaynor, J., dissented.
    Appeal by the defendant, The ■ Oakland Chemical Company, from a judgment'of the Supreme Court in favor of the plaintiffs, entered, in the office of the clerk of the county - of Kings, on the 7th day of June, 1906, upon the verdict of a jury, ánd also from ail order entered in said clerk’s office’ on the 5'tli day of June, 1906, denying the defendant’s motion for a new trial made upon the m-inútés: '
    
      Walter M. Beach, for the appellant.
    
      Louis H. Porter, for the respondents.
   Hooker, J.:

.The plaintiffs have had.a judgment for damages because of the defendant’s breach of an implied warranty on the sale by it of three barrels of a bleaching liquid sold under the trade name of Perozone. A large quantity of fine silk and cotton texture, known as mull, was treated by the plaintiffs with the Perozone and ruined. At the trial the plaintiffs claimed the fault lay in the liquid; the defendant contended it lay in the manner of its use. After the damage the plaintiffs delivered to the defendant samples of unbleached mull, such as had been injured, and the defendant’s president testified that in its laboratory the samples were bleached with no difficulty whatever by following the ‘directions that had been given to the plaintiffs. He continued.: “We used Perozone for the bleach. -It came from the same source that Davis & Quick’s (the plaintiffs) goods came from,- our regular factory stuff. By the Court: Q. -Hot out of. the same hatch that they did ? A. Ho, sir ; that is, not likely to be ; may have been.” The defendant’s counsel then asked the witness the following questions, which were objected to, although the ground of the objection does not appear; the objections were sustained, and the defendant excepted, namely : “ Q. What can you say about the uniformity of various batches ? ” “ Q. Had you any reason to suspect or believe that there was any difference in the preparation of the batches ? ” and “ Q. Do you know of any reason why the three barrels of Perozone sold them differed' from the others in your warehouse %

While the last two of the questions are doubtless open to criticism as to form, the three questions addressed themselves to a phase of the controversy which was material to the issue. The plaintiffs claimed that because of some ingredient of the Perozone the goods were spoiled; to meet that claim the defendant showed that it bleached some of the same goods with Perozone without injurious-effects, and should have been- allowed, if it could,.to meet the evidence adduced by the .question of the court to show that the re-agent used in the test by the defendant did not differ from that sold to the plaintiffs. The exclusion of the evidence was, therefore, error.

The witness Dr. Frederick E. Liclite was in the dye stuff and chemical business, and was a practical bleacher. While he was in the act of testifying that he had by the usé of Perozone bleached mull similar to that destroyed with good results, the court interrupted the examination with- this statement: “ It is admitted that the material has ordinarily done its work properly. I will- not let you accumulate evidence on that point. ■ Í am going to confine the plaintiffs to the. proof that, this particular lot was^ bad. You certainly can see that it is idle to multiply evidence on that branch of the case, vfhen your adversary has conceded it, and I have told you that X will so charge the jttry.” To this r.uling. the' defendant excepted. This was error. "We search the record in vain, for any-stipulation or concession by the plaintiffs that Perozone would bleach cotton and silk mull. The concession seemed to go no.farther than this-language of the plaintiffs’ attorney: “We concede that it can, under some circumstances, bleach a-certain class .of goods.” To rebut the plaintiffs’, contention that the Perozone was at fault,.it' was, of course, material for the defendant to show, if it could, that' fabric of the same character had been successfully treated by the witness with Perozone, it then being probably important for the defendant to show that the Perozone used by the witness was of the same chemical'composition with tharisold to the plaintiffs.

-There were Other errors' alleged to have been committed by the learned trial court during the progress of the trial, but inasmuch as similar situations.may-not arise upon the new trial, it'is-unnecessary to discuss them here. For the errors pointed out the judgment and order must be reversed and a new trial granted, costs to abide the event. '

Hirschberg, P. J., Rich and Miller, JJ., concurred; Gaynor, J., dissented, in opinion.

Gaynor, J.

(dissenting).

The questions were indefinite and asked for conclusions. A trial judge may, and should exclude'sncli questions, if asked on the direct examination. ' Only' questions calling for precise facts aré admissible, and then the judge and jury draw conclusions. And no one will deny that on cross-examination a trial'judge lias wider latitude in respect- of the examination of witnesses tliari on direct. examination ; he may curtail it, and keep it within bounds.. - '

As to the declaration, of the trial judge that it was.admitted by the .'plaintiffs’ side that Perozone worked all right and was efficient, was a. ■good article, and that the only question he was going to try and submit to the jury was whether the particular lot sold’ to the plaintiffs was' bad, by reason of some neglect in making it, that alone constitutes a stipulation by the plaintiffs, it being then there acquiesced in. But more than : tliat, a trial judge’s word imports verity, and a stipulation may rest iii his word alone. It is not necessary that the record show in addition a formal stipulation of counsel. More still, when the record is examined, it is found |hat the,case was tried oil the theory stated by the trial judge; and that the charge sent it to the jury on that question only.

There was a long and tedious trial, and no substantial error seems, to exist for us to set it at naught, and have the work all • done over 'again.

• Judgment and order reversed and new trial granted, costs to abide the event..  