delivered the opinion of the Court.
This appeal is from a judgment of the Court of Common Pleas of Baltimore City. Joe Zalis for the use of Melvern R. Krelow, appellee, sued Samuel R. Schley, trading as Schley Bros., the appellant. These parties were traders in vegetables and farm produce. Joe Zаlis negotiated with Phil Prince, acting for Samuel R. Sdhley, for the purchase of 300 lugs of green tomatoes. While *338 these negotiations were in progress, a question arose as to whether the tomatoes had been frozen, which, if true, would destroy their commercial value. Zalis was сoncerned about the condition of these vegetables and declined to purchase them without assurances that they were not frozen. Phil Prince, the salesman of Schley Bros., who had been, called as a witness for the plaintiff, testified that “Mr. Zalis asked me if the tomatoes were frozen and I said, ‘No, they aren’t frozen because they don’t look frozen to me,’ and he said, T will like to buy them provided you tell me they aren’t frozen.’ And I said, ‘Joe, look again. I am positive they aren’t.’ And he opened up a couple more boxes and greеn tomatoes- are hard to tell that they are frozen, and Joe bought three hundred boxes. He was afraid to buy the whole lot.”
This evidence was supplemented by the testimony of Joe Zalis, Avho stated, without contradiction, that “Mr. Prince promised me they were not frozen * * *. If they are frozen I will give you your money back * * *. Mr. Prince says, T guarantee they aren’t frozen.’ ”
The legal effect of this testimony is the question here presented. If it constitutes a warranty or guaranty, and there is evidence of both, the doctrine of caveat emptor, as urged by the appellant, does nоt apply, even though samples of the tomatoes were inspected by the appellee before the alleged purchase. The evidence clearly shows that the tomatoes had been frozen before the sale and were of little or no valuе. If the above testimony constitutes evidence of a warranty, either express or implied, then the trial court committed no error in refusing to grant the prayers of the defendant to withdraw the case from the consideration of the jury. The doctrine is stated in Corpus Juris, vol. 55, folio 652, in this languаge: Warranty is a statement or representation made by the the seller of goods, contemporaneously with and as a part of the contract of sale, although collateral to the express object of it, by reference to the character, quаlity or title of the goods, and;' by which he promises or undertakes to insure that certain facts are or shall be as he *339 then represents thеm. A warranty is express when the seller makes an affirmation with respect to the article to be sold, pending the treaty of sale, upоn which it is intended that the buyer shall rely in making the purchase.”
For the proper construction of the testimony, we must first examine the Sales Act, Cоde, art. 83, sec. 33, which provides that, “Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the nаtural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods rеlying thereon. No affirmation of the value of the goods, nor any statement purporting to be a statement of the seller’s opinion only shall be construed as a warranty.”
Generally speaking, this section is declaratory of a principle of the common law as reсognized by this court.
Rittenhouse, Winterson Auto Co. v. Kissner,
Upon this single question, relating to the warranty of the merchandise offered for sale, thе appellant made his defense. The finding of the facts, the credibility, and the weight of the testimony, are peculiarly within the province of the trial court sitting as a jury.
General Automobile Owners’ Assn. v. State, use of Penn,
The further claim that the appellee, the plaintiff, did not act with'that degree of promptness required by law, in giving notice to the seller when he ascertained definitely the condition of the tomatoes, cannot be accepted. Threе days after the transaction, one of them an intervening Sunday, Phil Prince, agent of the defendant, with whom Zalis dealt, was notified of the conditiоn of the tomatoes and made an inspection of them and told Zalis, who demanded a refund of the purchase price, that “he did nоt want to see him lose anything and would see I got my refund.” And that Prince further stated, “Yes, he knows they are frozen * * *,” and promised the plaintiff that “he wоuld see that he got a check.” It is, therefore, obvious that the seller not only received prompt notice, but regarded the affirmations of fact and promises made by him as constituting a warranty, and recognized and accepted the responsibility for a breach thereof.
In the argument at 'bar, the appellant urged that evidence of the agency of Prince is lacking in so far as it gives ¡authority tо make the contract of sale. Prince stated that he was the sales agent for the defendant, and Mr. Schley, although a witness on his own bеhalf, does not deny or question the agency. The transaction in itself and the testimony generally support this agency. The case belоw seems to have been tried entirely on the question of the proper construction of the contract, and not upon the 'authority to make it. We find no error, therefore, in the action of the lower court in refusing *341 to grant this defendant’s prayer for a directed verdict, which is the single exception in the record. Therefore, the judgment will be affirmed.
Judgment affirmed; costs to be paid by the appellant.