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and 114 New York State Reporter the river, and was not seen again alive. The iron pail was never found. Upon search being made for him soon after, a small ax or hatchet and one of his mittens were found on the old ice, 5 or 6 feet from the edge of the hole from which the ice had been removed. The new ice over the hole was broken to a considerable extent. His body was found the next day in the river, under the ice, 300 feet from where the new ice was broken. The weather during the week prior to the accident had been variable in temperature. Some snow had fallen, and the wind had at times been fresh, causing the snow to drift. The old ice about the hole was about 8 inches thick, and the new ice formed over the hole was an inch or less thick. Refuse and broken cakes of ice were about the hole, and also an ice bench, used in the work of taking and removing the ice. There was some snow over the new ice. Other facts appeared on the trial, which need not be referred to, as they are unimportant in considering the points which seem to us controlling upon this appeal. There was evidence sufficient to authorize a finding by the jury that defendant was negligent in failing to guard the place, after he had removed the ice, until such time as new ice should form of sufficient thickness to bear up a person passing over it. The purpose of such a guarding is to protect persons having occasion to pass along the ice, and who are ignorant of the dangerous condition, or who may not have it in mind. It was incumbent upon the plaintiffs, however, to prove, not only that the defendant was negligent, but that such negligence was the cause of the accident and death; otherwise, they were not entitled to recover.

We think it must be assumed, for the purposes of this appeal, that the deceased had full knowledge of the taking of the ice and the locality of the hole from which it was removed. If the jury found otherwise, the finding was without evidence to support it, and should be set aside or disregarded. It does not necessarily follow that the failure to guard did not cause the accident, even though the deceased had knowledge of the removal of the ice and the locality of the hole. He may not have had in mind at the time of the accident the fact that he was in the locality of the hole, and, if the guard had been there, his attention might have been called to it, and the accident avoided. The difficulty is that there was no evidence given on the trial from which any such inference could be legitimately drawn. The burden of proof was upon the plaintiffs to show that the defendant's negligence caused the accident and death, and we are unable to see how they have shown this. It did not appear how deceased came to go upon the new ice,—whether he was on his way to some point beyond the hole, and unintentionally went upon the new ice in passing by, not having in mind that he was in the locality of the hole, or whether, well knowing he was at the hole, he intentionally went upon the ice for the purpose of cutting a hole from which to get water.

If the former theory was the correct one, the neglect to guard the hole might have caused the accident. If the latter theory was the correct one, the neglect to guard the hole could not have been the cause of the accident at all. The jury could not be left to speculate as to which theory of the accident was the correct one. It was not necessary that there should be direct proof on the subject; but there should be at least proof of circumstances from which an inference could be fairly drawn by the jury, in favor of the theory, permitting a recovery by the plaintiffs. There was in this case no such circumstantial evidence. The circumstances tended to show that the deceased was after water. That was his errand down to the river. He said he was going for water. He took the ax to cut through the ice and the iron pail to bring the water in. He was not going in the direction of the water hole, but in an opposite direction. He intended to get the water at some place other than the water hole, because he took the ax and pail with him to the place where he was drowned. He evidently went there to get the water. The ax was found near by. The pail went with him to the bottom of the river. This theory is the only one that could fairly be inferred from the circumstances. Any other inference would be without evidence to support it and could not be upheld. If the deceased was at the place where he was drowned for the purpose of getting water, and knew that the old ice had been removed, and only new ice covered the hole, then, however careful or negligent he may have been in attempting to get the water, his drowning would in no way have been the result of the defendant's neglect to guard the place.

It must be remembered that the defendant's negligence did not consist in cutting and removing the ice and leaving a hole there. He had a legal right to do that. Unless the neglect to guard the place, and so warn the deceased of the danger, was the cause of the drowning, if the deceased, wlien he approached the place, knew about it as well as a guard would have informed him, then the defendant was in no legal sense liable for his death. The circumstances proved on the trial were equally as consistent with the theory we have suggested, as the theory that deceased was upon some other errand, which took him beyond this place, and that he unintentionally, in passing, went upon the new ice and was precipitated into the river; and, if this be true, the burden of proof was not sustained by the plaintiffs as to this issue. Indeed, we think the theory we have suggested is the only one that could fairly be inferred from the circumstantial evidence given upon the trial. We conclude, therefore, that the verdict, so far as it was based upon a finding that the negligence of the defendant caused the death of the plaintiffs' intestate, was without evidence to support it. Having arrived at this conclusion, we do not regard it as important to examine the other questions raised by the defendant in the case.

The judgment and order appealed from should be reversed, and a new trial granted, with costs to appellant to abide event.

Judgment and order reversed, and new trial ordered, with costs to the appellant to abide event, upon questions of law only; the facts having been examined and no error found therein. All concur.

80 N.Y.S.-3

and 114 New York State Reporter

(78 App. Div. 42.)

BELL V. MILLS.

(Supreme Court, Appellate Division, Fourth Department. December 18, 1902.)

1. TRIAL.-Nonsuit-POWER TO GRANT.

While the court has power to set aside a verdict as contrary to the evidence, it cannot grant a nonsuit based on a disregard of any of the

evidence as untruthful. 2. CONTRACT OF SALE-CONSTRUCTION-QUESTION FOR JURY.

It could not be said as matter of law that a purchaser of seed oats, who found in the sacks, when they reached him, a card which contained, near the bottom and in smaller type, the conditions on which they were sold, was bound to observe or read this fine print, and to know that it

was intended as part of the contract of sale. 3. SAME-EXPRESS WARRANTY-CONSTRUCTION.

Guaranty by a seedsman that oats sold by him for seeding purposes were “in good condition, choice stock, and well cleaned" did not amount

to a guaranty that they were free from mustard seed. 4. SAME-IMPLIED WARRANTY.

In the absence of an express warranty that oats, sold for seed, were

free from mustard seed, the law would imply one. 5. SAME-WAIVER'OF WARRANTY-QUESTION FOR JURY.

A purchaser of seed oats, under an implied warranty that they were free from mustard seed, testified that he did not discover any foreign seed among them until they were nearly all sowed, though he had carefully examined thein. Held, that it could not be said as matter of law that the implied warranty against mustard seed had not survived the

acceptance and sowing of the seeds by the purchaser. 6. SAME.

The mere fact that the purchaser sowed a small part of the oats after discovering the presence of some foreign seed, he testifying that he had no knowledge as to its character, did not, as matter of law, operate as an acceptance of all the seeds, free of any implied warranty against mustard seed.

Action by William H. Bell against Frank B. Mills. The trial court granted a nonsuit. Motion for a new trial on plaintiff's exceptions, heard in the first instance in the appellate division. Exceptions sustained, and new trial granted.

See 74 N. Y. Supp. 224.

Argued before ADAMS, P. J., and McLENNAN, SPRING, WILLIAMS, and HISCOCK, JJ.

D. E. Brong, for plaintiff.
Ceylon H. Lewis, for defendant.

WILLIAMS, J. The plaintiff's exceptions should be sustained, and a new trial granted, with costs to plaintiff to abide event.

The action was brought to recover damages for breach of warranty upon the sale of seed oats. The case has been in this court before, upon an appeal from a judgment for plaintiff entered upon the verdict of a jury. That judgment was reversed, and a new trial granted. See 68 App. Div. 531, 74 N. Y. Supp. 224. Upon a second trial, the court, without permitting a cross-examination of most of the plaintiff's witnesses, and without waiting for the defendant to put in any evidence whatever, invited a motion for nonsuit, and granted it at once, upon the theory that he was thus following the decision of this court upon the former appeal. This was an unfortunate disposition of the case, because, upon this motion to set aside such nonsuit and grant a new trial, 'the case must be considered and determined upon an entirely different statement of the facts, and an entirely different rule must govern our action, than upon the former appeal. Upon the second trial the plaintiff gave very different evidence from that given by him on the first trial as to material facts stated in our former opinion, and the trial court had no power to pass upon his truthfulness in making such change. His credibility upon the second trial was for the jury, and could not be taken from them and determined by the court. While the court, at trial term or in the appellate division, may set aside a verdict as contrary to the evidence after the verdict has been rendered, the trial court cannot grant a nonsuit, based upon a disregard of any evidence as untruthful. Williams v. Railroad Co., 155 N. Y. 158, 49 N. E. 672.

Upon the first trial the evidence showed that the plaintiff, at the time he received the oats and before he sewed any of them, took the card found in the oats and read it. No suggestion was then made that he did not read the whole of its contents. On the second trial he testified that he did not at that time observe or read the part of the card near the bottom and in smaller type, and that he knew nothing of that until long after the oats were all sowed. Upon the first trial the evidence showed little or no examination by the plaintiff of the oats when he received them, and before they were sowed,merely that he took some up in his hand, and let them run off into the bag. On the second trial, both he and his witnesses testified in great detail to the care used by them in examining the oats before they were sowed. On the first trial it appeared that the most casual examination of the oats would discover the presence of the foreign seeds therein. Upon the second trial it was shown that they were not discovered until nearly all the plaintiff's oats had been sowed, though very carefully examined by the plaintiff and his witnesses. So that, while the facts as stated in our former opinion were that the card in the oats was read by the plaintiff when he received the oats, and the foreign seeds could have been discovered, before the oats were sowed, by the most ordinary and casual examination, and little or no examination was in fact made before the sowing was done, none of these facts upon this motion can be regarded as settled, but the very contrary must be assumed. They were all questions of fact for the jury, and we must assume, for the purpose of this motion, that the jury would have found the facts directly the contrary of those stated in our former opinion.

It is said, however, as to the fine print upon the cards found in the oats, that it was there, and the plaintiff was bound to read it and to know what it was. The claim made by the plaintiff is that he did not know or understand that this fine print upon the bottom of the card was designed to be a contract, binding upon the parties, containing the terms and conditions upon which the oats were to be accepted by him and sowed. If the fine print matter was to be regarded as such a contract, it must have been assented to by the plaintiff; otherwise, the minds of the parties did not meet, and under and 114 New York State Reporter all the circumstances it could hardly be held as a matter of law that he was bound to know or understand that it was intended as such a contract, and to read or know its contents. It was very likely a question for the jury whether, coming to him as it did, he was bound to read it and know its contents, and that receiving it and accepting the oats without objection amounted to an assent to the terms thereof as a contract under which the oats were accepted and sowed. Blossom v. Dodd, 43 N. Y. 265, 3 Am. Rep. 701.

We cannot therefore, upon this motion, regard the fine print upon this card as a part of the contract between the parties, as we did do on the former appeal. We must determine this motion, then, upon the revised statement of fact indicated by the foregoing suggestions, and the question now involved may accordingly be stated as follows: The oats having been purchased for sowing, having contained a considerable quantity of mustard seed, which could not be discovered by an ordinary inspection or examination before sowing; more than an ordinary inspection and examination having been made by the plaintiff before sowing the same, and he not having discovered the presence of the mustard seed, the seed having been discovered after most of the oats had been sowed, but not even then known to be mustard seed; the remainder of the oats having been sowed, and the discovery that they were mustard seed not having been made until the crop came up from the ground; and the oats having been sold under the statements made in the catalogue, and delivered to and accepted by the plaintiff under the statements in such catalogue alone,was there a warranty of the oats, expressed or implied, as to the presence of mustard seed therein, which survived the acceptance and sowing of the oats, of which there was breach, so as to permit the recovery by the plaintiff of damages therefor? The defendant in the catalogue said: “My Guaranty. I guaranty that all seeds

sent out from my establishment shall reach the purchaser

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 guaranty crops, aud will not be held responsible for them."

And then, in advertising this particular kind of oats, on a subse quent page of the catalogue, in giving the price of the same, he said: "Price of choice stock, well cleaned," etc.; and the plaintiff paid the price so stated for the oats in question. The catalogue did, therefore, contain an express warranty that the oats were in good condition, choice stock, and well cleaned," when delivered to the plaintiff; and for a breach of this warranty the defendant prescribed the redress which the plaintiff would be entitled to, to wit, the refilling of the order upon giving sufficient proof of the breach in a reasonable time, and he added that he would not guaranty the crop and would not be responsible therefor.

In the absence of the printed matter upon the card, however, and considering the matter in the catalogue alone, it can hardly be said that this warranty covered the defect here complained of,—the presence of mustard seed in the oats. None of these words, used as they

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