
    Simeon B. Fanning, App’lt, v. International Seed Company, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 26, 1895.)
    
    Pleading—Complaint—Sale—Warranty.
    A complaint, in an action for breach of contract of sale, which alleges, that the defendant sold to the plaintiff potatoes, representing them to be a. new variety and enormous bearers, does not aver a warranty.
    Appeal from an interlocutory judgment, entered on a decision sustaining a demurrer to plaintiff’s amended complaint, on the ground that it does not state facts sufficient' to constitute a cause of action.
    
      D. W. Reeve, for app’lt; J. A. M Stephens, for res’pt.
   Pratt, J.

The defendant’s points state that plaintiff, in his complaint, attempted to set out a cause of action upon a contract wherein the defendant agreed to furnish to the plaintiff a new variety of potatoes for seed, that should be superior in quality, enormous yielders, unmixed, and that would be in great demand for seed in the year 1893, which contract defendant failed to perform. The clear comprehension of plaintiff’s purpose in-pleading would make it the duty of a judge at circuit to admit proof of the cause of action attempted to be set out, and to make such amendment in the pleadings as might be necessary to conform them to the proofs. But, upon demurrer, a pleading must be construed according to the allegations, and not according to an intention gathered ontside the language used. In the present case, the complaint alleges that'defendant sold potatoes “ representing that they were a new variety, enormous bearers,” etc. That is not an allegation that the potatoes were warranted to be a new variety, etc., nor that defendant agreed that they should be of a new variety, etc., or contracted to deliver potatoes of a new variety. Suppose plaintiff had known the potatoes were not in fact a new variety, and were not enormous bearers, etc., and yet had made the purchase. The allegation in the complaint might be true, but plaintiff would not have been deceived. It is true that proof, upon a trial, that a vendor represented goods to be of a particular kind or quality, may oftentimes enable a jury to see that the transaction was understood by the parties to be a warranty or a contract to deliver goods of a specific kind or quality, and render a verdict accordingly. But a representation is not necessarily, perhaps not usually, a warranty. Caveat emptor is the general rule. The allegations in the other branch of the complaint are equally loose. The plaintiff avers that he “purchased one-half the crop for one hundred and fifty dollars; ” but he does not allege that he paid the money under a mistake of fact, nor at all, nor that he has demanded its return.

The judgment appealed from must be affirmed, but without costs, with leave to plaintiff to serve amended complaint, on payment of costs, of the special term.  