
    (89 Hun, 146.)
    FANNING v. INTERNATIONAL SEED CO.
    (Supreme Court, General Term, Second Department.
    July 26, 1895.)
    Sale—Warbanty as to Quality—Sufficiency of Complaint.
    A complaint for breach of a contract of sale which alleges that defendant sold plaintiff potatoes, “representing that they were a new variety and enormous bearers,” does not show that defendant warranted the potatoes to be as represented.
    Appeal from special term, Suffolk county.
    Action by Simeon B. Fanning against International Seed Company. 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, plaintiff appeals. Affirmed.
    Argued before DYKMAN and PRATT, JJ.
    D. W. Reeve, for appellant.
    J. B. M. Stephens, for respondent.
   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 plainiff 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 outside 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.  