majority">Yandebburgh, J.

This action is brought by plaintiff to recover a balance clue upon contract for the sale and delivery of 1,000 barrels of apples, at an agreed price of $3,000. The complaint alleges the delivery of the apples, which the answer admits, and no other issue is raised by the pleadings, except that the answer alleges that the contract for the sale of the apples — which was not in writing— contained a stipulation amounting to an express warranty of the quality of the goods agreed to be furnished under it by plaintiff, and also a breach thereof, and claims damages, for which it sets up a counterclaim. The question of the rescission of the contract, in whole or in part, is not within the issues. The plaintiff affirms the contract, and brings this action upon it, and the defendant admits a delivery under it. The contract was executory, of goods to be selected by the plaintiff, and the 1,000 barrels sent were appropriated to it by him. 1 Benj. Sales, § 488, (Corbin’s Ed.)

No question arises in the case under the statute of frauds. If there was no warranty, the goods having been actually received and retained by the buyer, the case might be held to be governed by Haase v. Nonnemacher, 21 Minn. 486. That case proceeded upon the ground that there was no express warranty, but, as stated by the court, (page 490,) the seller might have bound himself by express warranty, as in the case of a sale in prcesenti, as the vendor was held to have done in Mandel v. Buttles, 21 Minn. 391, upon the consummation of the sale. Day v. Pool, 52 N. Y. 416.

It can hardly be doubted that there was evidence tending to prove such warranty in this case sufficient to send the case to the jury. The defendant’s evidence is that plaintiff applied to him to purchase his fall supply of apples; that defendant offered so to do if he, plaintiff, “would give his word that they were first-class, both in fruit and package;” that, after considering the matter, plaintiff agreed to accept defendant’s proposition, and “stated that the apples should be-in every particular equal to Henning’s and Stanley’s packing.” “We made the bargain in the office, I agreeing to pay him $3,000 for the apples, relying on his statements.” The evidence also tended to show that the apples furnished by plaintiff were of inferior grades, and not such as defendant claims they were represented and agreed to be, in *439quality or packing. They were delivered by rail in separate car lots at Albert Lea, where defendant resided. The first car having been contracted to several parties before its arrival, the consignment was accordingly forwarded to them without examination by defendant, and the other car lots were received in the expectation, and upon plaintiff’s assurance, that they would be better. It also appears that plaintiff notified defendant by letter that if he could not use or did not want the several cars already shipped or to be shipped, he might forward them to Minneapolis. This, however, the defendant did not do, but claims, and offered evidence tending to show, that after further negotiations the plaintiff came in person and examined the goods, and requested defendant to retain them and do the best he could with them.

The question whether the goods were finally so retained under the contract, in pursuance of such arrangement, was for the jury. After the delivery and receipt of the goods, under the circumstances as claimed by the defendant, a resale of a portion thereof, without examination or notice of their defective quality, and payment of a part of the purchase price as admitted, he was not bound to accept plaintiff’s proposition to reship the balance to other parties. He might retain the same, rely upon the warranty, and recoup or sue for his damages for the breach thereof. The question of warranty, as well as of the subsequent negotiations of the parties as to the disposition of the property, arising upon the evidence, seem to have been fairly submitted to the jury. The defendant had advanced over. $1,200 on the contract, and had received, as he claimed, inferior goods, and he might reasonably decline to abandon the contract unless a satisfactory adjustment was reached.

Defendant’s letter of October 26th, in which he advises plaintiff “to come or send a competent man and take apples off his hands,” doubtless had reference to some such adjustment, but was not an abandonment of his rights under the contract, and is to be construed in connection with the situation, and the subsequent conduct of the parties.

Order affirmed.

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