#### REIGER v. WORTH.

(Filed May 6, 1902.)

WARRANTY — Contracts—Sales—Representations.

Representations by a vendor that rice is excellent seed-rice amounts to a warranty.

ActioN by A. W. Redger against the Worth Company, heard by Judge Thos. A. McNeill and a jury, at the September Term, 1901, of the Superior Court- of Brunswick: County. Erom a judgment for the plaintiff, the defendant ap>-pealed.

E. K. Bryan, for the plaintiff.

Bellamy & Peschau, for the defendant.

Montgomery, J.

The defendant company offered for sale in the Wilmington newspapers a quantity of rice, represented to be excellent seed-rice, and the plaintiff having seen the advertisement, called at the company's place of business, and after looking at the rice to see if there was any of a red color amongst it, and finding none, purchased 125 bushels to plant his crop. At the same time one of the company’s managers, or agents, assured the plaintiff that the rice was good seed-rice. The plaintiff testified that he bought it, relying solely upon the defendant’s representations, and not knowing himself whether it was good seed-rice or not. The defendant’s agent admitted on .the trial that the rice was advertised as excellent seed-rice, and at the time of the sale to the plaintiff he made the representation to the plaintiff that it was good seed-rice, and that it was known that the plaintiff wished to buy it to plant. The rice failed to sprout after it was properly planted and treated, and the plaintiff brought this action to recover damages, alleging that the representations made by the company’s agent constituted a warranty that the *269rice was good seed-rice, and would germinate if properly planted and cultivated. That is the main question involved. Were the representations made by the defendant merely affirmations of description, or did they constitute a warranty?' The defendant’s contention was that whether the words were a warranty or not, was a question to be submitted to the jury upon the intention of the defendant in making the representations. The defendant had offered evidence to the effect that good seed-rice only meant rice free from red rice, and of good, sound, plump grain. But the evidence also was that if' rice did not sprout it was not good seed-rice. His Honor instructed the jury as a matter of law that the defendant’s representations amounted to a warranty, and that they should answer the issue on that question “Yes.” We think there-was no error in the instruction. In Love v. Miller, 104 N. C., 582, there was a contract to sell and deliver a quantity of cotton in bales, “to be of the average grade of middling,”' c-r above; — none to grade below “low middling” and nice good stains or tinges-; and the Court held that those words constituted a warranty that the cotton should be in fact of that quality, and not that it should be so according to any particular method of inspection. The Court referred .with approval to the case of Lewis v. Rountree, 78 N. C., 323, in which the following language of Millee, J., in Jones. v. Just, L. R. 3 Q. B., 197, was approved: “In general, on the sale of goods by a particular description, whether the vendee is able to inspect them or not, it is an implied term of the contract that they shall reasonably answer such description, and if they do not it is unnecessary to put any other question to the jury.” “It is not meant,” said the Court, “that words of description are always a warranty. But the cases in which that is held have something special to take them out of the rule, and to show that in those cases it was not so intended.” We see nothing in this case which forms an excep*270tion to the rule. Tbe first error alleged by tbe defendant is not in tbe case on appeal. Tbe testimony of tbe witnesses wbicb was objected to nowhere appears in tbe record, but, on tbe contrary, tbe question put to tbe witness was. not allowed by tbe Court. And tbe second exception stands on tbe same footing. It is an exception to tbe testimony of Joseph day, and in tbe case made out by bis Honor no sucb witness was examined. Tbe defendant’s third, fourth, fifth, sixth and seventh exceptions bear upon tbe question we have already discussed, and they are against tbe defendant. Prayers 4 and 5 constituted the defendant’s eighth and ninth exceptions, and they were substantially given. The defendant’s tenth exception was made to tbe refusal of bis Honor to instruct tbe jury that if they should find from tbe evidence that tbe plaintiff was a rice-planter of experience and knowledge, and that his information and knowledge of the quality of seed-rice was superior to that of the defendant, and the plaintiff bought the rice after a thorough examination of the same, and that tbe defendant did not know that tbe seed were defective and would not sprout, tbe plaintiff can not recover, and they should answer the second issue “No.” The exception is without merit, and for the reasons we have already given in this opinion.

No Error.