GOODE, J.
(after stating the facts). — 1. We find nothing in the record to show the berries were sold without fixing the price or at a reasonable price. The testimony for the parties disagreed at this point only in respect of what the price was, plaintiff’s witness saying it was $2.50 a crate and defendant’s that it was $2.75. Hence there was no cause for requiring the jury to find the price for which they were sold was reasonable. This error was introduced by plaintiff’s request, but we call attention to it because the judgment must be reversed on other grounds and probably there will be a retrial.
2. Both the answer and the instructions confused the distinct grounds of relief, false representation and warranty, also the distinct and, in some measure, incompatible grounds of an express and an implied warranty. For defendant to recover because of misrepresentation, it must show ingredients of a case not essential to recovery for breach of warranty; such as reliance on the false representation, that it was one adapted to deceive a buyer of ordinary prudence, and intention on plaintiff’s part to deceive. [Peers v. Davis, 29 Mo. 184" court="Mo." date_filed="1859-10-15" href="https://app.midpage.ai/document/peers-v-davis-administrators-8000682?utm_source=webapp" opinion_id="8000682">29 Mo. 184; Webb v. Rockefeller, 195 Mo. 57" court="Mo." date_filed="1906-03-29" href="https://app.midpage.ai/document/webb-v-rockefeller-8015710?utm_source=webapp" opinion_id="8015710">195 Mo. 57.] It is needless to say a party’s right to redress for broken warranties does not stand upon a fraudulent representation. [Halliwell Cement Co. v. Stewart, 103 Mo. *168App. 182.] If plaintiff affirmed the berries sold were Fancy Klondikes and defendant bought relying on the affirmation, this amounted to an express warranty they were of said variety, though the word “warranty” was not used in the negotiation; and the court erred in the seventh modified instruction for defendant, in treating this warranty as an implied one. [2 Mechem, Sales, secs. 1234 et seq.; Graff v. Foster, 67 Mo. 512" court="Mo." date_filed="1878-04-15" href="https://app.midpage.ai/document/graff-v-foster-8005957?utm_source=webapp" opinion_id="8005957">67 Mo. 512; Long v. Armsby Co., 43 Mo. App. 253" court="Mo. Ct. App." date_filed="1891-01-05" href="https://app.midpage.ai/document/long-bros-v-j-k-armsby-co-6616487?utm_source=webapp" opinion_id="6616487">43 Mo. App. 253; Danforth v. Crookshanks, 68 Mo. App. 253; Holloway v. Jacobs, 120 Pa. St. 583.] judicial opinions occasionally say the law implies a warranty in such a case, but we consider the seller has expressed one. It has been said a warranty is express when the seller makes an affirmation about the article to be sold, pending the treaty of sale, upon which it is intended the buyer shall rely in making the purchase. [Danforth v. Crookshanks, supra; Biddle, Warranties, secs. 1 and 2.] This is certainly true if the affirmation is intended by both parties to be part of the contract of sale, as plaintiff contends was the intention in this case. [2 Mechem, Sales, secs. 1224, 1227, inclusive.] While it would be difficult to trace a line between representations and warranties so as to leave all cases which have been held to be the former on one side, and all held to be the latter on the other side, we entertain no doubt that if the strawberries in question were sold by plaintiff and bought by defendant as Fancy Klondikes, they were warranted to be that kind. An express warranty will not exclude an implied one about other matters, but will as to matters the former embraces. [Pavement Co. v. Smith, etc., Co., 17 Mo. App. 264" court="Mo. Ct. App." date_filed="1885-04-07" href="https://app.midpage.ai/document/international-pavement-co-v-smith-beggs--ranken-machine-co-6614639?utm_source=webapp" opinion_id="6614639">17 Mo. App. 264; Hayner v. Churchill, 29 Mo. App. 676" court="Mo. Ct. App." date_filed="1888-03-19" href="https://app.midpage.ai/document/j-e-hayner--co-v-churchill-6615725?utm_source=webapp" opinion_id="6615725">29 Mo. App. 676.] The allegations of defendant regarding plaintiff’s warranties of the berries and their condition in respect of soundness, ability to stand shipment and salableness in St. Louis, constituted express warranties of the variety of the berries in controversy and their soundness, salable and shipable qualities. Moreover, the averments plainly say *169the Klondike variety is a sound and firm berry suitable for shipment and sale in distant markets. There was no proof to support the allegation of an express warranty regarding the qualities of the berries, except in so far as those qualities were understood by the parties to be inherent in a Klondike berry. That is, there was no proof of a warranty in so many words, of the berries possessing qualities adapting them to shipment and sale in St. Louis. The answer alleged plaintiff knew defendant was buying the berries for the St. Louis market, and we suppose this averment induced the court to permit a recovery for the berries on an implied warranty of their fitness for that market. But the answer said nothing about an implied warranty, and considered in its full scope, it clearly declared only on an express one both as to variety and qualities. By ordering Klondike berries defendant took the risk of that variety being popular and salable in St. Louis, but did not thereby take the risk of their'salableness in so far as this depended on their soundness of condition. The sum of the matter is that for defendant to recover on its counterclaim for a broken warranty, it must prove the berries were guaranteed to be Fancy Klondikes and were not, or if they were, that they were not in proper condition for shipment or sale; for instance, were green, or rotten, or had some other fault of condition.
3. Error was committed against defendant by modifying the seventh and eighth instructions so as to hold plaintiff had complied with the warranty if the berries were either Fancy Klondikes, or “such as would reasonably answer to such description.” This alteration simply destroyed the force of the warranty. If the berries were sold and bought as Fancy Klondikes, defendant was entitled to have that kind of berries delivered to it and no substitution without defendant’s consent, of another variety, which would reasonably answer the description, was a discharge of plaintiff’s obligation. Fancy Klondikes might not have been superior to some *170other variety; hut the evidence goes to show they were better known and more salable; and if defendant for those reasons wanted that kind of berry and bought it, it was not right to deliver another'variety, even though it would reasonably answer the description of the Fancy Klondike. [2 Mechera, Sales, sec. 1335 et seq., and citations in notes.]
4. Another error against defendant occurred in the third and fourth instructions granted for plaintiff, wherein both cars of berries were referred to as though they had been “inspected and packed and loaded into said car by defendant.” That language implied an inspection by defendant, and in fact complete knowledge of the berries at the time they were put into the car; whereas it is not contended defendant, or any one representing it, made an inspection of the packing and loading of the berries. Regarded in the phase most favorable to plaintiff, the evidence only goes to . prove McKnight, defendant’s representative, was in and out of plaintiff’s place of business while the cars were being inspected, packed and loaded, had opportunities to see .them and know their quality, and in fact both saw and knew. The court gave plaintiff the benefit of McKnight’s possible knowledge of the berries in instructions three and four granted for plaintiff.
5. The court properly refused to allow a recovery for damage suffered by the berries while in transit by any improper handling or delays, if the jury found they were shipped, billed and routed pursuant to the directions of defendant’s agent, and might have gone farther and refused a recovery for damage suffered in transit regardless of whether they were billed, and shipped according to such directions, because no ground of recovery of that kind was declared on in the answer, and by the theory of the answer defendant must abide.
On account of errors in the instructions the judgment will be reversed and the cause remanded.
All concur.