Williams, J.:
The judgment and order appealed from should be reversed and a new; trial granted, with costs to the appellant to abide event.
The action was brought to recover damages caused by the introduction of the seed of wild mustard into the plaintiff’s farm by the sowing of oats purchased of defendant.
Plaintiff’s farm was near Lockport and contained 100 acres, 22 of which were sowed to the oats in question. The defendant lived near Syracuse, and carried on a large seed business. Early in the year 1900 he issued a catalogue in his business, and on the 1st page thereof was the following : “ My Guarantee. I guarantee that all seeds and other goods sent out from my establishment shall reach the pm chaser safe, 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.” He also advertised in the catalogue a variety of oats, called the “ Record Breaker,” and said of them: “ After reading the experience of my customers in growing this oat, is there one that can doubt that this is not going to be a leading variety ? Order early, for you certainly cannot make a mistake. Price of choice stock, well cleaned, as follows,” etc., etc.
The plaintiff received this catalogue sent him by the defendant, read the guaranty and the advertisement of the “ Record Breaker ” variety of oats, and April 12, 1900, ordered by mail sixty bushels of the oats, paying therefor thirty-six dollars. The oats were received by the plaintiff about May 4,1900, put up in twenty bags, each bag containing three bushels. In each bag upon the oats was a card reading as follows:
“ Oats, Record Breaker. 1 exercise the greatest care to have all my seeds, potatoes, bulbs, plants, etc., fresh, pure, clean and true to name, and if such should not be the case, I will refill the order, free of charge, providing sufficient proof is given me within a reasonable length of time. I cannot guarantee crops and will not be held responsible for them. If these goods are not accepted on these terms, they must be returned at once.
“F. B. MILLS,
“ Fair view Seed Farm.”
[534] The plaintiff took the oats to his farm, and into his field, opened some of the bags and saw and- read one of the cards. He and his hired man took some of the oats up in their hands and looked ■ at them, observing that they were plump and looked -well, but made no further inspection or examination of-them. Some of the bags of oats were separated, one-half of each bag being emptied into another bag, and they-were then distributed about the field convenient for use, and the hired man was left to sow the oats with a -drill, which he at once commenced to do. The- plaintiff. left the field and was not present while the sowing was being done, until it was nearly finished. The hired man worked parts of three days in sowing forty-four bushels of the oats on the twenty-two acres. Bain prevented his working full days. The middle of the third afternoon, and when the hired- man had yet three acres to sow, he discovered foreign seeds in the oats. This was the first that they had been noticed. The plaintiff was away and the hired man continued the sowing. He did not know what the seeds were. Just before he had finished, and when he had still one bout to sow, the ■plaintiff came into the field ; was told by the hired man that he had discovered the-seeds, and then himself took some of the oats in his hands, ran them over and saw and examined the seeds.. He did not know what they were, and directed the hired man to finish the field, which he accordingly did. The seeds were small and black, and were first discovered when some of the oats were turned upon a flat surface of the cover of the' drill. They could readily be observed by putting some of the oats on any level surface, or even upon the hand, and moving them about. After sowing the twenty-two acres and using about forty-four bushels of the. oats, there were sixteen bushels left. The plaintiff, when he ordered the oats, intended to use himself only forty-four bushels, and to let his son have the remaining sixteen bushels. The son took the oats designed for him and sowed them upon his land. Before doing so, however, he and the plaintiff caused a part of them to be put in a sieve and a quantity of the foreign seeds to be removed therefrom. Hone of the oats were returned Qr offered to be returned to the defendant.,
A correspondence took place between the parties, of which the following is a brief synopsis: May 11, 1900, plaintiff wrote the defendant inclosing a package of the foreign seeds, and one of the [535] cards, found in the bags of oats, asked what the seeds were, and said they did not discover them till sowing was nearly finished, and then with a sieve took out of eight bushels of the oats at least a quart of the seeds. May 18, 1900, the defendant wrote the plaintiff that he could not, on examination, say certainly what- the seeds were; that he would test them and see what they were, and would like to have plaintiff report to him if anything came up; that he was very careful to have his oats perfectly clean, and could not see how as much foreign seed could have gotten into them. June 6, 1900, the plaintiff wrote the defendant that they had carefully examined the plants growing from the -foreign seeds in the oats, and were satisfied that they were mustard; that the seeding was a damage to him, having bought, as he supposed, perfectly clean oats, and asking defendant to send a representative to see the field. June 11, 1900, the plaintiff’s attorneys wrote defendant that there were noxious weeds in the oats sowed, and it became necessary to plow up the crop to prevent- the' foul matter from going to seed; that three or four days would be given defendant to see the existing condition before the plowing was done, and that plaintiff would make a claim for damages. The defendant seems to have sent a representative to examine the field, and June 16, 1900, he -wrote plaintiff that upon the return of his representative he found the foul weeds were mustard; that it was a mystery how the foul seeds got into the oats, and if plaintiff was certain they were in them when received, he could procure help immediately and pull the mustard before it seeded; that his representative said this could easily be done and would be the surest way to get rid of it; that he had a fine piece of oats, and the mustard could be pulled out at a good deal less expense than the crop could be plowed under and something else put in, and that if plaintiff would furnish him proof that the seeds were in the oats, he would pay for the labor to clean the mustard out. June 19, 1900, plaintiff’s attorneys wrote defendant in answer to his letter to plaintiff that there seemed to be no doubt that the mustard came from the seed oáts, and they would bé able to furnish him proof of the same at any time it became necessary; that plaintiff found it was' impossible to weed it out, and had determined upon plowing it up and working it with a .view to getting [536] rid of the foul stuff, and would commence in two or three days,, as it was growing and increasing every day, but" if defendant-thought it could be weeded out and would do so, and guarantee-the crop and land free from mustard seed, he would be pleased to-have him do it, to give it his immediate attention, or plaintiff would. commence to turn the crop under in a few days. June 20, 1900,, the defendant answered the attorneys’ letter, saying that his representative examined the field very carefully and told defendant that-he did not think the "mustard seed was in the oats when shipped, as-he was positive the oats were pure and clean, but did not know what happened to them after they left his warehouse; that they: had'shipped several thousand bushels from the same lot and there-was no mustard ■ seed in them, and the purchasers Were perfectly satisfied and said they were the cleanest lot they ever had, and if the" oats" shipped to plaintiff were full of mustard seed why .weretliéy hot returned in accordance with the card in each bag; that; instead' of this the plaintiff sowed them and thereby relieved the-defendant from -liability •;■ that it was a great mistake to plow the-oats under; that the only safe way to get rid of every spear was to-pull the mustard, and plaintiff should get help and do it; that he might have to go over the field more than once, but they could clean it out with very-little expense ; that he wrote plaintiff that he-would pay -this expense -if it could be proved the seeds were in the-oats when they left his warehouse; that if plaintiff insisted on plowing up the crop he did so at his own expense, because it was unnecessary, and the defendant would entertain no cláiin of that kind, etc." June 20,1900, plaintiff’s'attorneys replied to defendant’s letter, saying that in view of the difference of opinion as to the most practical method of eradicating the mustard in the oats, plaintiff would turn-, the field over to defendant, to -dispose of in the best and cheapest, way he could, otherwise plaintiff would adopt such practical method as to him seemed the best and cheapest, and asked defendant- to give-the matter his immediate attention and advise definitely what he-wotild do.
• July 5, 1900, plaintiff’s attorneys wrote defendant again, saying-one Cummings, some time before, was there and solicited a proposition for the settlement of plaintiff’s claim, and asking whether plaintiff’s proposition was communicated to defendant, and request[537] ing reply at once. July 11, 1900, defendant wrote plaintiff’s attorneys that his representative went to plaintiff and offered to pay the expense of pulling the mustard, thereby making the field all right that he did this, though he was positive that there were no mustard seeds in the oats when sold to plaintiff, and he was prepared to-prove it, but plaintiff refused to allow defendant to do this or to make any proposition lie could consider; that plaintiff wanted $600 damages for that year and $1,000 for all damages, but he did not intend to pay any such amount as plaintiff demanded, etc. The plaintiff thereupon, and July -24, 1900, commenced this action. He plowed the crop under and cultivated the field from time to time during that season to prevent the mustard from going to seed, •the last cultivation being about September 1,1900. The action was tried in April, 1901, and upon the trial the plaintiff testified that nothing had been done to the field since the cultivation in September, and he had not noticed any mustard in the field since that time. Evidence was given by other witnesses, however, that after September 1, 1900, they saw some few plants of mustard in the field. Evidence was given on the trial by several experts, who examined the-field after the crop came up, and testified there was a very thorough seeding of mustard, the plants covering the whole field and being very close together. They expressed the opinion that the most effectual way of getting rid of the mustard was by plowing and cultivating the field; that all the seeds might not sprout the first year, and that the mustard could not be certainly eradicated under five or ten years. Some proof was given as to the amount of work performed in plowing and cultivating the field and the value of labor in the locality, but it did not appear what the loss to plaintiff was from the failure of the crop and the labor performed upon the field. It appeared that the plaintiff paid the defendant for the forty-four bushels of oats sowed upon the twenty-two acres twenty-six dollars and forty cents, and that the whole value of the twenty-two acres-was forty-five dollars per acre, nine hundred and ninety dollars.
The court charged the jury that there was no express warranty of the oats, but that there was an implied warranty that they were free from any noxious seeds not discoverable by a reasonable inspection and examination, and submitted to the jury the question whether the mustard seeds were so discoverable.
[538] ■ The appellant contends:
First. That the- contraction the sale of the oats, as proposed by the defendant, was contained in the §ard accompanying the oats ; that this contract was completed on the part of the plaintiff by accepting and sowing the oats, after an opportunity to examine' and inspect them, and that, in view of the terms ■ of such contract, no warranty could be implied. ■
Second. That if any warranty could be implied it was not such a one as suggested by the court and as would survive the acceptance of the oats, inasmuch as a reasonable, examination and inspection thereof would have discovered the presence of the mustard seed.
These questions were clearly raised by exceptions to the charge as made and to refusals to charge as requested. . .
We are unable to see how there could be any implied Warranty at all under the contract of the parties. There can be no doubt as to what the contract was. Ho fraud or deception was claimed. The catalogue and the card accompanying the oats together constituted an offer by the defendant to sell and deliver the oats on certain terms. The guaranty in the catalogue was that the oafs should be delivered in good condition. The card stated that the defendant exercised the greatest care to have his seeds, among other things, pure and clean. In both the catalogué and card the defendant stated that if the seeds were not as represented he would refill the order, providing sufficient proof was given within a reasonable time; that he could not guarantee • the crop and would not be responsible for it, and then in the card he expressly provided that if. the oats were not accepted on these terms' th'ey 'musf be returned at once.
■ The oats having been shipped to and received by the plaintiff under this offer, he was called upon before he accepted and sowed the oats to examine and inspect them, not only ás to the general appearance of the oats themselves, but as to their being' pure, clean- and free from noxious seeds, and if they were found to be not'as represented, but to contain foreign seeds, he must refuse to accept them or to complete the contract, and could then take advantage of the provision in the offer to have his order refilled. He could not accept and.sow the oafs without examination and inspection, thus completing the contract, and then rely Upon 'any implied contract as [539] to the purity of the oats, for the breach of which he could recover damages for the introduction into the farm of the noxious weeds. ISTor are we able to see how in any event an implied warranty as to the purity of these seed oats would survive the acceptance and sowing of the same under the evidence in this case. Concededly the plaintiff, upon receipt of the oats, was called upon to make a reasonable examination and inspection thereof before sowing the same, and a warranty would only be implied as to defects which were not discoverable upon such reasonable examination and inspection. The plaintiff made substantially no effort to discover whether the oats contained any foreign or noxious seeds. All he did was to observe casually the general'condition of the oats themselves; that they were plump, good-looking oats. The mustard seeds were freely distributed through the whole lot of oats so that the plants therefrom sprung up over the whole field upon which the oats were sowed, close together. A large quantity was readily taken from the eight bushels of oats which were put in the sieve. The seeds could be easily discovered by placing the oats upon any level surface, even the flat of the hand, and moving them about. Under these circumstances, how can it be said that any warranty that the oats were pure and free from any noxious seeds could be implied as charged by the trial court, that such noxious seeds were not discoverable by a reasonable examination and inspection? This question was submitted to the jury, it is true, and they must have found that the plaintiff made a reasonable examination and inspection of the oats, and that the foreign, noxious seeds were not discoverable upon such an examination and inspection. We cannot, however, regard such a finding as warranted or authorized by the evidence given on the trial.
Another objection to a recovery is that after the plaintiff discovered the presence in the oats of the foreign seeds, he continued to use them, sowing three acres of his own land and turning sixteen bushels over to his son, who sowed them upon his land. This case did not, therefore, rest upon the proposition that the plaintiff retained the oáts and did not return them to the defendant while in ignorance of the presence of foreign seeds. He retained and sowed, or allowed his son to sow, twenty bushels thereof after he concededly discovered the presence of .the foreign seeds. This would seem to [540] constitute an acceptance under the contract, which no implied warranty of the oats would survive.
Again, the. damages awarded by the jury under the circumstances were excessive. The measure of damages charged by the court was correct as a general proposition, the amount paid, for-the oats sowed upon ,the twenty-two acres, and the difference in the value of the whole farm of one hundred acres, by reason of the introduction of' the mustard seed into the twenty-two acres. The difficulty was in the application of the rule to the evidence in the case. The plaintiff sowed the oats upon three of the twentyr two acres with a knowledge that there were foreign seeds therein. He did not know the seeds were noxious, but he sowed them in disregard of the danger to be apprehended in sowing upon his land seeds the nature of which lie did not know. It was plaintiff’s" duty, when he discovered the.injury done to his land by the introduction of mustard, to do whatever he could to make the damages as little as possible. He was asked by the defendant to employ help and pull the mustard plants before they went to seed, and the defendant finally offered to pay the expense thus incurred, regardless of his legal liability to do so. The plaintiff refused to treat the laud in this way, but proceedéd to plow the whole crop under and to harrow the field thereafter, making at .the same time a claim for $1,000 damages to his farm. The crop of oats was thereby destroyed, and the plaintiff had no more-use of the twenty-two acres that year. Very likely it was for the jury to determine whether the plaintiff acted in good faith in plowing and harrowing the land rather than pulling the mustard plants, and which was the better method to get rid of the mustard, but. what evidence was there upon the trial that the treatment given the land had not substantially eradicated the mustard seed from the twenty-two acres? Merely the evidence of so-called" experts that it was likely that all the mustard seeds had not sprouted, and would yet produce mustard plants, and that it could not certainly be known that the mustard was entirely eradicated for five and perhaps ten years. The season of 1900 had 'passed. .' It was April, 1901, when the trial took place. Substantially no additional plants had appeared after the final harrowing the first part of September, 1900, and yet it was said other plants might ■ appear' thereafter, would very likely appear, and upon the [541] theory that they would so appear, and could not be eradicated from the twenty-two acres by pulling the plants, or plowing and harrowing the field, but would extend over the whole farm, witnesses testified that in their opinion the damage to the whole farm was from $2,000 to $3,000. The jury showed their appreciation of the opinions of the witnesses by rendering a verdict for only $900. We are unable to see how, under the circumstances of this case, the damage could have amounted to anything like $900. The full value of the twenty-two acres was only $990. It may be true that no treatment of the field could eradicate the mustard, and that it would necessarily extend over the whole farm, but so far as appeared on the trial, the plowing and harrowing of the field in 1900 did substantially eradicate the mustard therefrom. Assuming that some plants would appear the following season, still fit seems as though, by some care and attention for a year or two, every plant and seed could be disposed of, and the farm be entirely relieved therefrom. A new trial will be had, however, and it will then be possible to show what did appear in the season of 1901; what treatment the plaintiff gave the field, and what the result was. If then a recovery shall be had at all, the amount of damages can be determined more satisfactorily than upon the former trial.
Our conclusion is that the judgment and order appealed from should be reversed and a new trial ordered, with costs to appellant ■ to abide event.
Adams, P. J., McLennan and Hiscock, JJ., concurred; Spring, J., concurred in result on the ground that the damages are excessive under the proofs.
Judgment and order reversed on the law and the facts, and new trial ordered, with costs to the appellant to abide event.