Grace, J., concurs in the result.
Christianson, J. (concurring). All the errors assigned and argued on this appeal relate to the defense interposed by the defendant. It is contended:
(1) That there is no evidence justifying the application of subdivision 1, § 15, c. 202, Laws 1917, which provides:
“Where the buyer, expressly or by implication, makes known to the selier the particular purpose for which the goods are required, and it appears that the buyer relies upon the seller’s skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for that purpose.”
(2) That the evidence in this case does not show a breach of such warranty (if one exists) for the reason that it does not appear that the musical instrument was not reasonably fit for the purpose for which it was purchased, but on the contrary that the evidence shows that it was fit for such purpose.
(3) That the contract of sale was for a specified article, under its patent or trade name, and, hence. that (under subd. 4, § 15, c. 202, Laws 1917) there was no implied warranty as to its fitness for any particular purpose.
(4) That there is no evidence from which the jury could compute the amount of damages to which the defendant is entitled, in event a warranty and breach thereof were shown.
1 and 2. So far as the first two contentions are concerned. I am of the opinion that the evidence, considered as a whole, justified the submission to the jury both as to whether an implied warranty existed, and also whether there was a breach of such warranty. In other words, the evidence was such that it could not be said, as a matter of law, either that there was or was not an implied warranty; neither could it be said, as a matter of law, that the warranty (if one existed) had not been broken. Inasmuch as the findings of the jury upon these two questions have substantial support in the evidence, they are, of course, not subject to interference by this court.
3. The contention that the contract involved in this case was for the sale of a specified article, under its patent or trade name, has in my opinion no real basis in the evidence. The evidence shows that the defendant was solicited by the plaintiff to purchase an instrument of the character involved in this controversy. When the defendant called upon
