In Error to the District Court of the United States for the Second Division of the Northern District of California; Wm. C. Van Fleet, Judge.

Action by the American Trading Company (Pacific Coast), a corporation, against the North Alaska Salmon Company, a corporation. There was a judgment for plaintiff for nominal damages, and it brings error.

The plaintiff in the court below, the plaintiff in error here, was engaged in the brokerage business, and for several years prior to 1911 had purchased the greater part of the output of do-over salmon known as the Archer brand, produced by the defendant, which was engaged in the business of canning Alaska salmon. “Do-over” salmon is salmon wMcli lias been cooked twice, on account of prior defective cooking or defective cans. On November 16, 1911, tbe parties entered into a written contract for the sale by defendant to the plaintiff of all the defendant’s pack of the season of 1912 of “do-over grade red Alaska salmon labeled ‘Archer,’ not to exceed 5,000 cases.” The contract provided as follows: “Delivery is to be made within 30 days after arrival of vessels from Alaska, and goods to be paid for on presentation of warehouse receipt or delivery documents.” “Archer brand of salmon to be overhauled in San Franchisco by sellers, and all swells and rusty tins to be taken therefrom, after which no 'reclamation of any nature will be allowed.” “Buyers have privilege of inspecting salmon before taking delivery. Sellers guaranteeing goods to be equal to the 19(1 pack.” “The salmon under this contract is sold subject to being packed and safely landed in San Francisco.”

The counts of the plaintiff’s complaint on which the ease was tried were the second and the fourth; demurrers to the other's having been sustained. The second count, after setting forth 1he contract, alleged that as a part of the contract it was understood and agreed by the parties that said Archer brand salmon would be merchantable, edible, and suitable for human consumption, and of the condition and quality that would entitle it by law to be brought into the city and county of San Francisco, and thereafter sold; that the defendant shipped to San Francisco and delivered to the plaintiff 5,000 cases of the do-over salmon of the Archer brand, and the plaintiff received the same without inspecting or examining it, and relying on. the defendant’s representations and the samples which had been furnished, which samples had been examined by the plaintiff and ascertained to consist of edible salmon fit for human consumption, and merchantable, and equal in quality and condition to the 1911 pack; that shortly after the delivery to plaintiff of the 5,000 cases of Archer brand, and in reliance upon said samples and representations, and in ignorance of the actual quality and condition of said salmon, plaintiff paid defendant therefor $16,961.30, the entire purchase price thereof; that the said 5,000 cases were unmerchantable, unedible, tainted, putrid, and unfit for human consumption, and adulterated within the meaning of the Pure Food and Drugs Act of Congress of June 30, 1906 (34 Stat. 768, c. 3915 [Comp. St. 1916, §§ 8717-8728]), and the act of the Legislature of California of March 11, 1907 (St. 1907, p. 208), that at or shortly after the time of, the shipment and delivery of said salmon, and prior to the time of the commencement of this action, the defendant well knew of the condition and quality of said merchandise, but has failed, neglected, and refused to return or pay the plaintiff said $16,961.30, or any part thereof. The fourth count sets forth the written contract, and the warranty therein contained that the salmon should be equal to the 1911 pack; that samples were submitted according to the custom which had prevailed between the parties for several years; that the samples examined by plaintiff were fully equal to the 1911 pack of the Archer brand, and were edible and fit for human consumption; that, relying on the defendant’s representations, plaintiff accepted delivery arid paid the purchase price therefor; that the salmon delivered was not equal to said samples, and that the defendant is estopped from alleging or maintaining that the plaintiff is precluded from advancing a claim for damages for breach of the contract for failure to make such claim within ten days after the removal of swells as provided for in the contract, by reason of defendant’s representations respecting the samples.

The court instructed the jury in substance that the provision in the contract that, after the removal of the swells: and rusty tins, no reclamation of any nature will be allowed, did not mean that reclamation might not be had for defects, if they existed at the date of delivery, that could not be so discovered or detected;' that it was the duty of the defendant, under the terms of the contract and the law, to deliver to the plaintiff salmon which at the time of delivery was substantially capable, taking the shipment as a whole, of being used for human consumption, and thar, if the jury should find that the salmon was not at that time substantially of a character that, over and above the percentage of defective cans usually found in goods of that description, was in condition for human consumption, and that the plaintiff. could not have ascertained at the time of the delivery that such was its condition except by opening tlie cans, tlie plaintiff is not precluded from recovery for such defects, “and your verdict should he in its favor for the difference between the market value which the salmon would have had at the time of its delivery to plaintiff, had it been o£ the quality called for, and its actual value as delivered.” Tlie . court further instructed the jury that, if the salmon as a whole had no value as a merchantable commodity, there would be an entire failure of consideration. and in that event they should return a verdict in favor of the plaintiff for the return of the full purchase price thereof. The court further instructed the. jury that, if they found that the salmon was at the time of the delivery substantially equal in quality and condition to the salmon delivered in 1911, their verdict should he in the defendant’s favor, but, if they found otherwise on that issue, the plaintiff would bo entitled to* a verdict for the excess, if any, of market value which the salmon would have had, had the warranty been complied with, over its actual market value in the condition in which it vas delivered. The jury returned a verdict for the plaintiff, and assessed its damages in the sum of !fl.