others and uses in producing the agreed article. Where this view obtains, a manufacturer who, for example, sells circular saws, to be used by the purchaser in a circular-saw mill, is liable "for any latent defect not disclosed to the purchaser, arising from the manner in which the article was manufactured; and if he knowingly uses improper materials, he is liable also; but not for any latent defect in the material which he is not shown and cannot be presumed to have known." 1

183. Seller engages that Goods are Merchantable. - Whether the seller is manufacturer or dealer, he impliedly engages that goods sold by description are merchantable. "The purchaser has a right to expect a salable article answering the description in the contract. . . . He cannot without a warranty insist that it shall be of any particular quality or fineness; but the intention of both parties must be taken to be that it shall be salable in the market under the denomination mentioned in the contract between them. The purchaser cannot be supposed to buy goods to lay them on a dunghill.” 2

184. Extension of this Rule by Statute. This rule is applied by the Sale of Goods Act in England and by the Uniform Sales Act in some of our States to present sales as well as to contracts to sell; and to cases where the buyer had an opportunity to examine the goods, provided he did not examine them, or the unmerchantableness was of such a character as not to be revealed upon a proper examination. But it is not applied to a sale of specified articles, as distinguished from a sale of articles of a particular kind."

185. Rule restricted in some of the United States. In this country many courts restrict the rule to contracts to sell by

1 Hoe v. Sanborn, 21 N. Y. 552, 566 (1860); Bragg v. Morrill, 49 Vt. 45 (1876). As pointed out above, the Uniform Sales Act repudiates this distinction. N. Y. L. 1911, ch. 571, § 19 (1).

2 Gardiner v. Gray, 4 Camp. 144, 145 (1815). Accord, Trego v. Arave, 20 Idaho, 38; 116 Pac. 119 (1911). "Good merchantable hay" means hay vendible in market at the ordinary price; and whether the hay tendered was such is to be determined by the evidence of experts and not by the inspection of a sample bale by the jury.

Sale of Goods Act, § 14; Uniform Sales Act, Mass. L. 1908, ch. 237, § 15; Procter v. Atlantic Fish Cos., 208 Mass. 351; 94 N. E. 281 (1911). 4 Chalmers' Sale of Goods Act (7th ed.), 47.

description, or to present sales without an opportunity of inspection. The seller satisfies his obligation if the article supplied is merchantable generally, although not salable for every purpose for which, if perfect, it might be used, also if it is salable in the market under its contract name, although somewhat adulterated.4

186. Present, not Future, Merchantableness. The seller's implied engagement for merchantableness does not extend, as a rule, beyond the time of the appropriation of the goods to the contract. Whether he has supplied the articles agreed upon, depends upon their character and condition when supplied. He does not undertake that they shall continue merchantable. Even if he agrees to deliver them at a distance, he is not liable for such deterioration as is necessarily incident to their transportation. But when they are furnished for shipment, whether he pays for their carriage or not, he impliedly engages that they are fit for such shipment. If the buyer

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1 Howard v. Hoey, 23 Wend. 350 (1840). "When the contract is executory," it "always carries an obligation that it shall be at least merchantable, at least of medium quality or goodness" (p. 351); Winsor v. Lombard, 18 Pick. 57 (1836); Burdick's Cases on Sales, 351.

2 Moore v. McKinley, 5 Cal. 471 (1855); Burdick's Cases on Sales, 353. 3 Hart v. Wright, 17 Wend. 267 (1837), (flour fit for many purposes but unsuitable for starch); Jones v. Padgett, 24 Q. B. D. 650 (1890); Burdick's Cases on Sales, 327; Remy, Schmidt & Plessner v. Healy, 161 Mich. 266; 126 N. W. 202 (1910).

Gosler v. Eagle Sugar Refinery, 103 Mass. 331 (1869), (Manila sugar which contained four per cent of sand). In this case the trial judge instructed the jury to answer the following question: "Did the plaintiffs deliver to the defendants an article which in commercial language might properly be said to come under the denomination of Manila sugar?” The jury answered in the affirmative, and the court, on appeal, held that the defendants received what they undertook to buy.

5 Lord v. Edwards, 148 Mass. 476; 20 N. E. 161 (1889); English v. Spokane Com. Co., 57 Fed. 451 (1893), (seller, in Omaha, contracted to ship a car-load of strictly fresh eggs to buyer in Spokane Falls); J. D. Best Co. v. Brewer, 50 Colo. 455, 462; 115 Pac. 726 (1911).

Bull v. Robinson, 10 Exch. 342 (1854); Mobile Fruit Co. v. McGuire (Minn.), 83 N. W. 833 (1900), (two loads of bananas deliverable in Mobile, Ala., for transportation to St. Paul, Minn., and injured by extreme hot weather); Champlin v. Church, 76 N. J. L. 553; 70 At. 138 (1908).

7 Mann v. Evertson, 32 Ind. 355 (1869); Carleton v. Lombard, 149 N. Y. 137 (1896); Burdick's Cases on Sales, 355. "The plaintiffs were not only entitled to the thing described, but to that thing in such condition

insists upon having the article prepared and delivered at a particular time, he absolves the seller from liability for any unmerchantableness due to the latter's compliance with the

order.1

187. Engagement of the Vendor of Provisions. — In most jurisdictions, the foregoing rules govern the sales of provisions.2 If the purchaser selects the article, caveat emptor applies.3 If he orders an article to be used as food, the seller who undertakes to fill the order impliedly engages that it is fit for that use.4

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188. Does He engage that They are Wholesome? - There are some decisions, and many dicta, however, in this country to the effect that, upon a sale of provisions for immediate domestic use, the seller impliedly engages that they are wholesome. These judicial utterances are based upon a statement by Blackstone that, "In contracts for provisions, it is always implied that they are wholesome; and if they be not, the same remedy" (action for "damages for this deceit") "may be had." But, as Mr. Benjamin has pointed out, no authorities

and so free from hidden defects as to make it available to them as an article of commerce and fit for transportation" (p. 150), (petroleum, improperly refined, which corroded the cans in which it was placed by sellers for transportation by buyer to India); Southern Produce Co. v. Oteri, 94 Ark. 318; 126 S. W. 1075 (1910).

1 Mattoon v. Rice, 102 Mass. 236 (1869), (a marketman ordered a butcher to kill a good hog that night and deliver it the next morning, although the butcher had notified him that the weather was unsuitable). 2 Benjamin on Sales (Bennett's cd., 1891), §§ 670-672, and pp. 658, 659; Uniform Sales Act, § 15.

Burnby v. Bollett, 16 M. & W. 644 (1847); Burdick's Cases on Sales, 363; Giroux v. Stedman, 145 Mass. 439; 14 N. E. 538 (1888); Burdick's Cases on Sales, 365; J. S. Farren & Co. v. Dameron, 99 Md. 323; 58 At. 367 (1904); Farrell v. Manhattan Market Co., 198 Mass. 271; 84 N. E. 481 (1908).

4 Smith v. Baker, 40 L. T. N. s. 261 (1878). "In this case, if the butcher had not gone and selected his meat, but had ordered it, there would have been, no doubt, an implied warranty on the part of the" dealer "that it was of merchantable quality" (p. 263).

5 Van Bracklin v. Fonda, 12 Johns. (N. Y.) 468 (1815). The seller knew that the beef was unsound and unwholesome, and did not communicate the fact to the buyer. Fleet v. Hollenkemp, 13 B. Mon. (Ky.) 219, 227 (1852), (action against druggist for damages caused by negligently mingling' cantharides with snake-root and Peruvian bark when filling a prescription for plaintiff).

63 Blackstone's Commentaries, p. 165.

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are cited for this proposition, and "the notion of an implied warranty in such cases appears to be an untenable inference from the old statutes which" made "the sale of unsound food punishable." Courts which still maintain this doctrine urge in its support that it is conducive "to health and personal safety." In Hoover v. Peters 2 it is said: "And where articles of food are bought for consumption, and the vendor sells them for that express purpose, the consequences of unsoundness are so dangerous to health and life, and the failure of consideration is so complete, that we think the rule, which has often been recognized, that such sales are warranted, is not only reasonable, but essential to public safety. . . . It is safer to hold the vendor to a strict accountability than to throw the risk on the purchaser." This consideration does not apply to sales of food for animals.3

189. Quantity as an Essential Term or Condition Precedent. - Quantity, as well as quality, may be an essential term of the sale contract. When it is, the seller is bound to furnish, not only the kind, but the amount of goods agreed upon. If the contract is "for 250 barrels of cement," the seller has a right to that amount, and can reject the tender of a different quantity; unless a larger number is tendered to insure a full compliance with the contract, and without any charge for the excess. The seller, who supplies and demands payment for a

1 Benjamin on Sales, supra; Goad v. Johnson, 6 Heisk. (Tenn.) 340 (1871); Hanson v. Hartse, 70 Minn. 282; 72 N. W. 163 (1897); Warren v. Buck, 71 Vt. 44; 42 At. 979 (1898).

2 Hoover v. Peters, 18 Mich. 51 (1869); Sinclair v. Hathaway, 57 Mich. 60; 23 N. W. 459 (1885); Burdick's Cases on Sales, 367; Wiedman v. Keller, 171 Ill. 93; 49 N. E. 210 (1897); Cook v. Darling, 160 Mich. 475; 125 N. W. 411 (1910).

Lukens v. Freiund, 27 Kan. 664, 670 (1882). Dulaney v. Jones, Miss.; 57 So. 225 (1911).

Downer v. Thompson, 2 Hill (N. Y.), 137 (1841); Barter v. Kane, 17 Wis. 371 (1863). So if the contract is for "half a chest of French plums, 2 hogsheads of raw sugar, and 100 lumps of white sugar," Champion v. Short, 1 Camp. 53 (1807); or for "a pair of horses," Hamilton v. Hart, 8 Sess. Cas. 1st ser. 596 (1830).

5 Downer v. Thompson, 6 Hill (N. Y.), 208 (1843). "The excess would hardly seem to be so large as to preclude a jury from inferring that it was only added to make sure of having delivered enough; there being some

larger or smaller quantity than that agreed upon, attempts "to change the subject of the contract.1

When the seller tenders a larger quantity than the contract calls for, and demands payment for the whole as a single lot, it has been held that the buyer has no right to take and keep a part only. The tender was treated as a new offer to sell the larger quantity (twenty-five barrels of granulated sugar instead of ten), which the buyer might have rejected, but which he accepted by exercising ownership over a part of that larger quantity.2

189 (a). All that the Purchaser may require. If the seller is imprudent enough to bind himself to furnish all the goods of a particular kind which the buyer may require, during a specified period, he will be liable for damages if he fails to satisfy such requirements, provided they are made in good faith, although they may exceed the seller's capacity to produce and supply.3 Courts are not inclined to enlarge the terms of such contracts beyond their necessary import.4

189 (b). All that Seller produces. —A contract to sell all the lumber, or other articles manufactured or produced by the seller, during a prescribed period, does not bind the seller to continue his business to the end of such period.5

190. Effect of such Words as "about." - When a specified quantity of goods is the subject of the contract, the addition of such qualifying words as "about," "more or less," and the

doubt perhaps as to the manner in which the defendant might wish the quantity determined, the article, moreover, being liable to some loss by leakage, and the excess being of no very great value as compared with the anticipated profit upon the whole."

1 Stevenson v. Burgin, 49 Pa. St. 36, 44 (1865).

2 Ormond v. Henderson, 77 Miss. 34; 24 So. 170 (1899); cf. Cunliffe v. Harrison, 6 Exch. 903 (1851); Burdick's Cases on Sales, 372.

Whitehouse v. Liverpool Gas Co., 5 C. B. 798; 17 L. J. C. P. 237 (1848); cf. Minn. Lumber Co. v. Whitebreast Coal Co., 160 Ill. 85; 43 N. E. 774 (1896); North British Oil Co. v. Swann, 6 Sess. Cas. 3d ser. 835, 838 (1868); Staver Carriage Co. v. Park Steel Co., 104 Fed. 200 (1900).

• Manhattan Oil Co. v. Richardson Lubricating Co., 113 Fed. 923, 925; 51 C. C. A. 553 (1902); Hettiger v. Davenport Malt & Grain Co., 145 Ky. 39; 139 S. W. 1072 (1911).

H. M. Pfann & Co. v. Turner Cypress Lumber Co., 194 Fed. 69; 114 C. C. A. 89 (1912).