W. 196; Benjamin on Sales, § 311; Poland v. Brownell, 131 Mass. 138.
Messrs. Goodwin, Van Pelt & Gammons, for respondent, cited upon the point stated in first paragraph of the foregoing syllabus: Dailey v. Green, 15 Penn. St. 118; Byers v. Chapin, 28 Ohio St. 300; Field v. Kinnear, 4 Kan. 409; Taylor v. Cole, 111 Mass. 363; Polhemus v. Heman, 45 Cal. 573; Brigg v. Hilton, 99 N. Y. 517. On the third point they cited: Brewing Co. v. Mielenz, 5 Dak, 136; Pielke v. R. R. Co. id. ib. 444. On the fourth point they cited: Green v. Disbrow, 56 N. Y. 336; Greenleaf on Evidence, vol. 1, § 52. On the fifth point: Mordhorst v. Neb. Tel. Co. 44 N. W. 469; Kern v. Bridwell, 21 N. E. 664; Smedhurst v. Proprietors, etc., 19 id. 387.
Bartholomew, J. This was an action to recover damages for a breach of warranty in the sale of certain seed wheat. At the close of plaintiff's testimony, and again when the testimony was all in, appellant moved the court to take the case from the jury, and direct a verdict for defendant, for the reason “that the sale mentioned in the complaint was not a sale with a warranty; that it was only an executory contract for subsequent sale and delivery of wheat; and that the subsequent acceptance of the wheat, with opportunity for examination, bars any action for recovery by reason of the wheat not being as contracted for.” The adverse ruling on this motion raises the first question in the case. The contract was made at a distance of several miles from the wheat. Plaintiff was represented by her husband, who acted as her agent. The amount, price, terms of payment, and security to be given were agreed upon, and, as plaintiff claims, the warranty was given. Plaintiff not being present to execute the note and mortgage, the papers were prepared, and taken to plaintiff, who signed them, and returned them the following day by her husband, who delivered them to an agent of the defendant, and received an order for the wheat. At that time the wheat was in the possession of another agent of defendant, and was an unseparated portion of a much larger quantity of wheat of substantially the same quality. Plaintiff sent her son, a young man nineteen years of age, after the wheat, and it was
