170. On the other hand, if a manufacturer of iron bedsteads contracts to make a lot in accordance with a sample furnished by the buyer, a stipulation that the beds are to be inspected and approved at the seller's factory does not alter the nature of the contract. It is one for sale by sample; and if the beds furnished do not conform to the sample, the manufacturer is liable in damages for breach of his contract, unless, indeed, the buyer waives his rights by accepting the beds in discharge of the seller's obligation.1

When the sale is by sample, the seller must show that the goods conformed to the sample in order to recover the price.2

171. Fitness for a Particular Purpose. — (a) Express Engagement. If the parties expressly stipulate that the described article shall be suitable for a particular purpose, it is clear that the seller does not furnish the thing agreed upon unless it possesses the fitness stipulated for. Such fitness is an essential characteristic of the article. A stipulation of this kind exists when a buyer asks for "copper for sheathing a vessel," and is assured by the seller that "he will supply him well." 3

172. (b) Implied Engagement. — It is not necessary, however, that the undertaking be in express words. Whenever the facts of a case fairly warrant the inference that the parties understood the subject-matter of the sale contract to be not a designated article merely, but that article possessed of fitness for a 18 Ret. (Sc. Sess. Cas. 4th ser.) 972 (1891). It is apparent from the opinion in the latter case that, in Scotland, a failure to preserve and identify the sample is strong evidence that the parties did not intend to contract for conformity of bulk to sample. Cf. Brown's Sale of Goods Act (1st ed.), 77.

1 Leitch v. Gillette-Herzog Co., 64 Minn. 434; 67 N. W. 352 (1896); and cf. Hanson v. Busse, 45 Ill. 496 (1867); Burdick's Cases on Sales, 332. 2 Deland Mining & Milling Co. v. Hanna, 112 Md. 528; 76 At. 850 (1910).

Jones v. Bright, 5 Bing. 533; Burdick's Cases on Sales, 318 (1829). "Whether or not an article has been sold for a particular purpose is, indeed, a question of fact; but if sold for such purpose, the sale is an undertaking that it is fit. . . . Here there has been, in my opinion, an express warranty" (in the sense of condition precedent); Best, J., 544, 545. See opinion of Burrough, J., 548, 549; cf. Bellows Falls Mach. Co. v. Manning Paper Co., 159 Mich. 45; 123 N. W. 553 (1909); Berg v. Rapid Motor Vehicle Co., 78 N. J. L. 724; 75 At. 933 (1909); “a thirty horse power automobile, capable of carrying twenty passengers."

known use, the seller engages to supply the article with this attribute. In the language of Justice Brett, "You must therefore first determine from the words used, or the circumstances, what, in or according to the contract, is the real mercantile or business description of the thing which is the subject-matter of the bargain of purchase or sale, or, in other words, the contract. . . . If the subject-matter be an article or commodity to be used for a particular purpose, the thing offered or delivered must answer that description; that is to say, it must be that article or commodity, and reasonably fit for the particular purpose. The governing principle, therefore, is that the thing offered and delivered under a contract of purchase and sale must answer the description of it which is contained in words in the contract, or which would be so contained if the contract were accurately drawn out." 2 Such an engagement is fairly inferable whenever the buyer apprises the seller of the particular purpose for which the article is required, and has a right to rely and does rely on the seller's skill or judgment in supplying the agreed thing.3

Moreover this engagement is a condition precedent to the buyer's obligation to take and pay for the goods.*

173. Seller must be notified of Particular Purpose. - The notification by the buyer may be made directly to the seller or through a third person; it may be communicated by ex

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1 Fitzmaurice v. Puterbaugh, 17 Ind. App. 318; 45 N. E. 524 (1896); Burdick's Cases on Sales, 321; Randall v. Newson, 2 Q. B. D. 102, 109 (1877); Burdick's Cases on Sales, 321; Loxtercamp v. Implement Co., 147 Ia. 29, 33; 125 N. W. 830 (1910).

2 Randall v. Newson, supra.

3 Sale of Goods Act, § 14; Uniform Sales Act, § 15.

Bobrick Chemical Co. v. Prest-O-Lite Co., 160 Cal. 209; 116 Pac. 747 (1911); Luitweller Pumping Eng. Co. v. Ukiah Water & Imp. Co., 16 Cal. App. 198, 205; 116 Pac. 707 (1911); S. F. Bowser & Co. v. Kilgore, - Ark. —; 139 S. W. 541 (1911). Such engagement is "not merely a warranty but a condition precedent, upon the performance of which depends the completion of the contract of sale;" distinguishing Gay Oil Co. v. Roach, 93 Ark. 454; 125 S. W. 122; 27 L. R. A. N. s. 914; 137 Am. St. R. 122 (1910), a collateral warranty, where the buyer's only remedy was for damages. Campbell v. Kennerly & Dorr, Ark. ; 143 S. W. 97 (1912).

Englehardt v. Clanton, 83 Ala. 336, 341; 3 So. 680 (1887); Burdick's Cases on Sales, 339 n.

press words or by conduct,1 but it must in some way be brought home to the seller. If the buyer is known to the seller as a woollen merchant, but not as a tailor, his order for a quantity of "indigo blue cloth" does not amount to a notification that he requires the goods for the purpose of making them into servants' liveries.2 Nor will the seller's supposition that the buyer proposes to use the goods for a particular purpose avail the latter, when their fitness for such use does not enter into the negotiations and there is nothing to show that the buyer has a right to rely on the seller's skill or judgment in determining its fitness. If the buyer in such a case wishes to subject the seller to an engagement that the goods are fit for a particular purpose, he must disclose this wish to the seller in some way before making the purchase.

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The buyer fairly discloses such wish by giving an order to a nurseryman for fruit trees for an orchard; or, for goods to be resold by him.5

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174. Reliance on Seller's Skill or Judgment. -The buyer has a right to rely on the skill and judgment of the seller, not only when this is clearly stipulated for, but whenever their relations are such that in the ordinary course of things inspection by the purchaser is impracticable, or the seller has, or

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1 Gillespie v. Cheney, 65 L. J. Q. B. 552; (1896) 2 Q. B. 59. Whether "the particular purpose for which the goods were required" was made known to the seller may "be gathered from the course pursued and the conduct and acts and correspondence of the parties antecedent to the contract." Lord Russell, pp. 554, 555; Bunch v. Weil Brothers & Bauer, 72 Ark. 343; 80 S. W. 582 (1904); West Mich. Furniture Co. v. Diamond Glue Co., 127 Mich. 651; 87 N. W. 92 (1901).

* Jones v. Padgett, 24 Q. B. D. 650 (1890); Burdick's Cases on Sales, 327.

3 Hight v. Bacon, 126 Mass. 10 (1878); Burdick's Cases on Sales, 330;

Iron Works v. Supply Co., 68 W. Va. 519; 70 S. E. 125 (1911).

Grisinger v. Hubbard, 21 Idaho, 469; 122 Pac. 853 (1912).

Bunch v. Weil Brothers & Bauer, 72 Ark. 343; 80 N. W. 852 (1904); Haynor Mnfg. Co. v. Davis, 147 N. C. 267; 61 S. E. 54 (1908). “A manufacturer selling a beverage for resale to one who has not a license to sell intoxicating liquors, engages that it can be lawfully resold by such purchaser." Case of "Buchu Tonic."

• Brown v. Eddington, 2 Man. & Gr. 279 (1841); Swift & Co. v. Redhead, 147 Ia. 94; 122 N. W. 140 (1910).

7 Morse v. Stockyard Co., 21 Ore. 289; 28 Pac. 2 (1891).

assumes to have, superior skill and judgment 1 in determining its suitableness for the required purpose. If one agrees to sell to another, who is buying hogs for the market, a number of hogs for immediate shipment, the buyer, not having an opportunity to inspect them before delivery, must necessarily rely upon the seller's judgment in the selection of particular hogs and their appropriation to the contract.2 In such a case, the buyer assents to the seller's selection and appropriation of the goods to the contract upon condition that the latter selects and appropriates such as are fit for the market. If unfit hogs are tendered, the buyer may reject them.

When

175. The Superior Skill and Judgment of a Manufacturer or Producer. The seller of an article, who is also its manufacturer, producer, or grower, is in a much better position to judge of its fitness for a designated purpose than the ordinary buyer. He is, or holds himself out to be, conversant with its qualities and its adaptability, as well as with the processes of its manufacture,3 or the conditions of its production. such a seller accepts an order for his product to be put to a particular use, "it is plainly to be inferred that both parties understand the purchase to be made upon the judgment and responsibility of the seller." In other words, he impliedly engages that the article is fit for the designated purpose; and such engagement extends to latent defects which might have been guarded against by his exercise of reasonable skill during the process of its manufacture, growth, or production. The

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1 Beals v. Olmstead, 24 Vt. 114 (1852); Burdick's Cases on Sales, 331; Geo. E. Pew Co. v. Karley & Titensor, Ia. ; 134 N. W. 529 (1912). 2 Best v. Flint, 58 Vt. 543; 5 At. 192 (1886).

3 Drummond v. Van Ingen, 12 App. Cas. 284 (1887); Burdick's Cases on Sales, 311. "It would be unreasonable to expect from the merchant an exact knowledge, not only of the sort of article which he wants, but also of the processes by which it is to be manufactured. He has a right to presume that the manufacturer understands his own business, and will use such methods as may be proper to produce a good article of the kind ordered. The burden of ascertaining beforehand that this can be done, or how it is to be done, does not rest upon him" (at p. 288).

Hoe v. Sanborn, 21 N. Y. 552, 563 (1860); Geo. E. Pew Co. v. Karley

& Titensor, Ia. —; 134 N. W. 529 (1912).

Kellogg Bridge Co. v. Hamilton, 110 U. S. 108, 116; 3 Sup. Ct. 537 (1883). Indeed, if the undertaking of the manufacturer is to supply an

manufacturer who undertakes to supply a cloth merchant with "coatings," is bound to furnish material which is fit to be made into coats in the usual manner. If he supplies cloth which is unsuitable for such use, because of a latent defect resulting from the mode of manufacture, he does not perform his contract.1

Nor does the manufacturer of a windmill, which is ordered for use at a particular place, perform his contract by supplying a mill which will not work well at that place.2 "It would be most unreasonable," said the court in the last cited case, "to hold that the buyer was bound to pay for a mill that would not work at all in the place agreed upon. . . . The manufacturer was bound to know whether the mill would work well at the place chosen, and, as it did not, he has no right to compel payment of the agreed price. The price agreed upon was for a windmill that would work well on the place selected, and not one that would work well in an open plain or upon a hill-top.'

176. The Rule applies to Quarrymen and Seed-growers. — The same doctrine applies to a quarryman who sells granite blocks to a contractor for use in the construction of a particular sewer. He impliedly engages that the blocks shall be such as the sewer contract requires. It is applicable, also, to the grower of seeds, who "must be presumed to be cognizant of any omissions or negligence whereby they have been deteriorated or rendered unfit for use." In contracting to sell to a marketgardener a quantity of "large Bristol cabbage-seed," he impliedly engages that the seed supplied under the contract is "free from any latent defect arising from the mode of cultiva

article fit for the particular purpose, it is immaterial upon principle whether he exercises reasonable skill or not. His engagement is absolute. And such is the holding of the best reasoned cases. Rodgers v. Niles, 11 Ohio St. 48, 56 (1860); Burdick's Cases on Sales, 335; Randall v. Newson, 2 Q. B. D. 102 (1877); Burdick's Cases on Sales, 321.

1 Drummond v. Van Ingen, 12 App. Cas. 284 (1887).

2 McClamrock v. Flint, 101 Ind. 278, 282 (1884). Accord, Nixa Canning Co. v. Lehmann-Higginson Grocer Co., 70 Kan. 664; 79 Pac. 141; 70 L. R. A. 653 (1905); Clarke v. Johnson Foundry & M. Co., 42 S. W. 844 (Ky. 1897); Little v. G. E. Van Syckle & Co., 115 Mich. 480; 73 N. W. 554 (1898); Grand Ave. Hotel Co. v. Wharton, 79 Fed. 43 (1897). 3 Breen v. Moran, 51 Minn. 525, 530; 53 N. W. 755 (1892).