McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by Jayne, J.A.D.
The respondent, Flexmir, Inc., utilized its premises designated as Nos. 20-28 Broome Street in the City of Newark in its business of metalizing plastics. To supply heat for the building it operated in the boiler room an Enterprise oil burner of the industrial type consuming fuel oil of grades Nos. 5 and 6 with the aid of a preheating unit. During a period of about two years preceding January 3, 1948, it purchased the requisite quantities of Nos. 5 or 6 oil from the appellant, Lindeman & Company.
The use of the heavy grade of oil is more economical in the operation of burners of the industrial type, but by reason of its quality of viscosity it is advantageous to increase its fluidity by means of a preheating device before its introduction through the appropriate nozzle into the combustion chamber of the furnace.
The appellant was aware of the pattern of the oil burner and its accessories maintained by the respondent and always furnished to the respondent a No. 5 or 6 grade of oil.
About six o'clock on the afternoon of January 2, 1948, the appellant delivered to the respondent and placed in the latter's underground storage tank 200 gallons of No. 2 fuel oil. The tank had a capacity of 3,000 gallons. It is estimated that there were at that time some 500 or 600 gallons of the No. 5 or 6 oil remaining in the tank. The suction pipe through which the oil is withdrawn from the tank for its introduction into the preheater and burner is located about four or five inches from the bottom of the tank.
Since the employees, except perhaps some members of the office force, were not expected to work at the plant on the following day, Saturday, January 3, 1948, the superintendent of maintenance discontinued the operation of the oil burner during the night. Having started it early the following morning, it operated about one-half hour when an explosion suddenly occurred in the boiler room. It is from this mishap that the present litigation eventuated.
The plaintiff-respondent has a judgment in conformity with the verdict of the jury against the defendant-appellant in the sum of $9,269.60 damages, which we review in pursuance of the present appeal.
The cause of action was prosecuted solely upon the allegation of a breach by Lindeman & Company of the statutory implied warranty of quality and fitness of the No. 2 grade of oil.
"(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on 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 such purpose.
"(5) An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade." R.S. 46:30-21.
Our inquiry is confined by the appellant to the question whether "the verdict is against the greater weight of the evidence on the issues of the alleged breach of warranty and its ...