Appeals Taken at Different Times—Embodiment in One Transcript.—Under rule two of the supreme court, where an appeal by a defendant from a judgment against Mm, and an appeal from an order denying his motion for a new trial, are taken at different times, and the notice of intention to move for a new trial was regularly given before the appeal from the judgment was taken, the record on both appeals may be embodied in the same transcript, without any stipulation or order therefor.

■Sale—Warranty of Kind or Description-—Representation of Fact.— As a general rule, on the sale of a chattel as being of a particular kind or description, stated as a fact, a contract is implied that the article sold is of that kind or description. Substantially, the description is warranted. To make this rule applicable, the circumstances must be such as to amount to a representation of fact on the part of the vendor that the article is of the particular kind or description.

Ed.—Acts of Vendor as Representation of Fact.—If the buyer in terms asks for the particular kind and the seller purports to comply with his request, he would probably be held to warrant the article as being of that kind, although he may not have made any declaration in words to that effect. In other words, the circumstances may be such as to make the acts of the vendor constitute such a representation.

Id.—Warranty of Variety of Barley—Evidence Insufficient to Show Warranty.—In an action to recover damages for the breach of an alleged warranty that certain seed barley sold was of a variety known as “bearded," it is held, upon a review of the evidence, that there was no demand by the purchasers, at the time of the sale, in terms for bearded barley, and no representations by the seller that the barley sold was of that variety; that there was nothing warranting the conclusion that there was a custom or usage at the place of the sale, known to the seller or so notorious that one engaged in the grain business must be presumed to know it, to the effect that where the word “barley” was used without qualification it meant only bearded barley and did not include beardless barley, and that there was nothing to show that the seller had any knowledge or reason to suspect that the fact that the barley sold was of the beardless kind, if known to the buyers, would operate as an influence against its purchase.