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fect machines on account of being constructo | the author sums up the result thus:' 'On the ed of unseasoned lumber, rendering them un- whole, therefore, it may be doubted whether fit to perform the work perfectly, for which there be any instance, in which a knowledge they were put in the mill."

of the object for which a specific chattel is Plaintiff's moved for judgment on the spe bought will raise an implied warranty that cial findings. The court took the case under it is fit for that purpose, although a failure advisement, and at a subsequent term gave to acquaint the vendor with its unfitness may judgınent for defendants against plaintiffs be evidence of fraud, and thus render the for the sum of $13.50 in accordance with the vendor liable in an action of tort.'” The verdict and findings. Plaintiffs bring the case same question was passed upon by this court here for review, and allege numerous er in Safe & Lock Co. v. Huston, 55 Kan. 104, rors. Many of these relate to rulings upon 39 Pac. 1035. It was there held that there objections to the amended cross-petition fil was no implied warranty as to quality. The ed after the cause was remanded, and to ob court said: "There is nothing in this case jections to the evidence introduced by de indicating that the safe purchased by the fendants in support of the cross-demand. plaintiffs was manufactured especially for From the view we have taken of the case, its them, but the fair inference is that it was merits can be disposed of by considering the one of the kind of safes which the defendant action of the trial court upon the motion for manufactured for sale to whomsoever would judgment on the findings.

buy.” The doctrine of Lukens v. Freiund, It might be observed, in passing to the supra, was expressly approved in Kinkel v. main question, that the jury beyond doubt Winne, 67 Kan. 100, 72 Pac. 518, 62 L. R. allowed several items of alleged damages A. 596, where the contract was for the twice, and it is equally clear that their find sale and purchase of a fire insurance busiing the value of the machines to be $375, in ness, and it was sought to establish an imthe face of the express terms of the written plied warranty of the character and fitness contract fixing the purchase price at $875, of a certain register showing the expiration was without warrant of law. It is well set of policies. In the opinion, the following tled that a purchaser of goods who seeks to statement of the general rule is quoted from recover dainages for a breach of a war Leake on Contracts (20 Ed.) 404; 'If an ranty must affirm the contract in all its order be given for the manufacture or supply terms, and is bound by the contract price. of an article to satisfy a required purpose, He cannot retain the goods, and at the same that purpose, and not any specific article, betime repudiate the contract. Weybrick & ing the essential matter of the contract, the Co. v. Harris, 31 Kan. 92, 1 Pac, 271. Plain seller is then bound, as a condition of the tiffs were entitled to a credit, to start with, contract, to supply an article reasonably fit of the $875, the price and value fixed by the for the purpose, and is considered as warcontract, from which should be deducted the ranting that it is so. If an order be given freight charges of $25 paid by defendants, for a specific article of a recognized kind or and any damages resulting from a breach of description,

and the article is supany warranty which the contract expressed plied, there is no warranty that it will anor the law implied. That there was no ex swer the purpose described or supposed, al. press warranty was settled by the former de though intended and expected to do so.'” cision. The

The main question, therefore, is It is interesting in this connection to note this: From the facts in this case, was there that by statute in England no such warranty an implied warranty by plaintifr that the as is contended for in this case can arise machines would do the work for which they by implication. The English sale of goods were purchased? The doctrine of implied act upon this subject is as follows: "14. warranties in the sale of manufactured ar Subject to the provisions of this act and of ticles was stated and applied in Lukens v. any statute in that beball, there is no imFreiund, 27 Kan. 664, 51 Am. Rep. 429. The plied warranty or condition as to the quality syllabus reads as follows: "While, when an or fitness for any particular purpose of goods article is ordered from a manufacturer to be supplied under a contract of sale, except as by him manufactured for a specific and un follows: (1) Where the buyer, expressly or derstood purpose, there is in some cases an by implication, makes known to the seller implied warranty that the article when man the particular purpose for which the goods ufactured will be reasonably fit for the pur are required, so as to show that the buyer pose intended, yet, when a purchase is made relies on the seller's skill or judgment, and from him of a specific and completed ar the goods are of a description which it is ticle, he is to be regarded as a dealer, and in the course of the seller's business to suphis liability determined accordingly. Field ply (whether he be the manufacturer or not), v. Kinnear. 4 Kan. 476; Bigger v. Bovard, there is an implied condition that the goods 20 Kan. 201; Duncan v. Baker, 21 Kan. 99." shall be reasonably fit for such purpose, proJustice Brewer, in the opinion, quotes in the vided that in the case of a contract for the following language from a well-recognized sale of a specified article under its patent or authority: “After quite a review of the other trade-name there is no implied condi-authorities in Smith's Leading Cases, p. 251, tion as to its fitness for any particular pur

pose.” The scope of this proviso is stated by written contract relying upon such represenLord Russell, C. J., in the following lan tation. The contract was for the purchase of guage: “That obviously is intended to meet a certain, specific machine which failed to the case, not of the supply of what I may answer the purpose for which it was purcall for this purpose raw commodities or ma chased. The Supreme Court held that there terials, but for the supply of manufactured was neither an express nor an implied wararticles-steam ploughs, or any form of in ranty that the machine would answer the vention which has a known name, and is purpose. As said in Davis Calyx Drill Co. bought and sold under its known name, pat v. Vallory, supra, “it is not the familiarity ented or otherwise. Gillespie Bros. & Co. v. of the purchaser with the character and Cheney, Egger & Co., 2 Q. B. 59, at 64." work of the machine ordered, but the identiThe common-law rules on the subject of im ty of the thing described in the contract, plied conditions or warranties as to quality which brings the latter within the rule" or fitness are referred to and the cases classi that there is no implied warranty of fitness fied in Jones v. Just, L. R. 3 Q. B. 197, 37 where a known, definite, and described thing L. J. Q. B. 89, where the particular warranty is purchased. under consideration is spoken of in the fol A recent case in point is Lombard W. W. lowing language: "Thirdly, where a known, G. Co. v. Great Northern Paper Co., 63 Atl. described, and defined article is ordered of a 555, 101 Me. 114, 6 L. R. A. (N. S.) 180. manufacturer, although it is stated to be re There, as here, the written contract conquired by the purchaser for a particular pur sisted of a proposal to purchase and an acpose, still, if the known, described, and de

ceptance. The things purchased were autofined thing be actually supplied, there is no matic water-wheel governors, described as warranty that it shall answer the particular “four (4) of our type 'B' governors, and four purpose intended by the buyer"-citing Chan (4) of our '23' balanced relief valves.” It ter v. Hopkins, 4 M. & W. 393. The English was contended that the governors were not statute on this subject is discussed and the adapted to the purpose intended, and that leading cases under the statute which is there was an implied warranty that they declaratory of the common law are cited in would be suitable for the purpose of deBenjamin on Sales (5th Ed.) 622, 623, 635. fendants' plant. The court said in the opin

In Davis Calyx Drill Co. v. Mallory, 137 ion: “It would be sufficient to say that Fed. 332, 09 L. R. A. 973, 69 C. C. A. 662, the existence of this implied warranty as there was a written contract for the purchase part of the contract is negatived by its exof a drill described in the manufacturers'

plicit terms defining the guaranties of the catalogue. The purchaser relied upon as plaintiff, by the fact that it contains express surances made before the contract was en guaranties which by the legal construction tered into to the effect that the drill would exclude all others, and by the fact that the be suitable for drilling through certain strata goods sold were articles such as the vendor of rock in Lucas county, Iowa, and sought in the ordinary course of his business manto recover damages upon the theory that, ufactured for the general market. When a because the manufacturer knew the special contract is in writing, an additional warranpurpose for whic: the drill was purchased, ty, not expressed or implied by its terms, there was an implied warranty that it would that the article is fit for the particular use, be suitable for such purpose. It was held: cannot be added by implication." (The ital"An implied warranty that an article will be ics are ours.) In addition to the foregoing, fit for a particular purpose may be inferred the following cases announce the same docfrom a contract to make or furnish it to ac trine: Cleveland Punch & Shear Works Co. complish that specific purpose, because the v. Consumers' Carbon Co., 78 N. E. 1009, 75 accomplishment of the purpose is the es Ohio St. 153; Grand Avenue Hotel Co. V. sence of this contract.

But no im Wharton, 79 Fed. 43, 24 C. C. A. 441; Storplied warranty of such fitness arises out of age Co. v. Woods & Zent, 99 Mich. 269, 58 a contract to make or supply a described and N. W. 320, 41 Am. St. Rep. 599; Peoria Grape definite article, although the vendor knows Sugar Co. V. Turney, 175 Ill. 631, 51 N. E. that the vendee is purchasing it to accom 587; Wiedeman v. Keller, 171 Ill. 93, 49 N. plish the specific purpose, because the es E. 210; Gossler v. Eagle Sugar Refinery, 103 sence of this contract is the delivery of the Mass. 331; Milwaukee Boiler Co. v. Duncan, specific article, and not the accomplishment 87 Wis. 120, 58 N. W. 232, 41 Am. St. Rep. 33; of the purpose." So in Seitz v. Brewers' Re Goulds v. Brophy, 42 Minn. 109, 43 N. W. 834, frigerating Co., 141 U. S. 510, 2 Sup. Ct. 46, 6 L. R. A. 392; Wheaton Roller-Mill Co. v. 35 L. Ed. 837, the manufacturer was inform John T. Noye Mnfg. Co., 66 Minn. 156, 68 N. ed that plaintiff desired to dispense with W. 854; Whitmore et al. v. South Bos the use of ice in cooling his brewery; that, ton Iron Company, 2 Allen (Mass.) 52; Otunless the proposed machine would cool 150, tawa Bottle & Flint-Glass Co. v. Gunther 000 cubic feet of air to a certain degree, it (C. C.) 31 Fed. 208. would be of no value. The manufacturer as In 15 American & English Encyclopedia sured him that the machine would answer of Law, p. 1236, note 6, the case of Smith v. the purpose, and plaintiff entered into the McNair, 19 Kan. 330, 27 Am. Rep. 117, is cit

ed as holding generally that a dealer is lia- | not to be extended to cases which lack the ble to a purchaser of goods upon an implied necessary conditions upon which it depends. Warranty as to fitness and quality. There : The essence of the rule is that the contract the vendor sold certain papers purporting on : is executory; that the particular article is their face to be genuine school district bonds, not designated by the buyer; that only his which turned out to be forgeries. The ven- i need is known; that he does not undertake (lor was held liable. The distinction between or is not able to determine what will best that case and this is that there the vendor supply his need, and therefore necessarily olid not deliver the thing purchased. In the leaves the seller to make the determination opinion Chief Justice Horton stated the rule and take the risk; and if these elements are as follows: “The rule is that, if one person wanting, the rule does not apply." itpplies to another to purchase an article for At the time the machinery in this case was a. particular purpose, and the person so ap- purchasedl, plaintiffs in error were engaged plied to sells hin the article knowing that at Enterprise, Kan., in the business of manuthe purchaser relies upon his complying with facturing and selling mill machinery. The his request, the law implies that the article machines in controversy were not manufacis delivered with a warranty that it is the tured by them, but were made by Wolf Bros. :trticle called for." It will be readily seen at Chambersburg. Pa., and shipped direct to that the case does not decide that there is an the purchaser from the manufacturers. Plainimplied warranty on the part of the dealer tiffs are dealers, and the findings are that that the thing sold will answer the purpose they did not see the machines nor have an intended by the buyer, but that the implied opportunity to do so until after they were in Warranty is that the thing called for by the operation.

operation. There is a finding also that the contract of purchase shall be delivered. machines turned out by the manufacturers

Another case cited in the same note, where and placed upon the market were complete in the vendor was a dealer, and it was held that themselves and required only to be attached there was an implied contract as to quality, by suitable connections to be operated. It is that of Shaw v. Smith, 45 Kan. 334. appears that the machines were described in 25 Pac. 886, 11 L. R. A. 681. Shaw & Co. the manufacturers' catalogue, and that 32 were dealers in flaxseed, and Smith entered similar machines had been sold in Kansas into a contract with them by which they and were in operation when Casper Brown, were to furnish flaxseed for him to sow and after corresponding with some of the owners l':use a crop from. The dealers were to pur of mills where the same machinery were in chase the crop from him upon certain terms use, made his purchase. The contract relied stated in thie contract. The dealers did not upon by plaintiffs in error appears to be the have the flaxseed at the time the contract same contract in every respect that it was was made. They afterwards furnished far. when the case was here before. It wils theu seed which appeared to be good, and which held that the written contract comprised in both parties believed to be good. In fact it the order and letter of acceptance could not was worthlass. It was held that there was be varied or extended by parol evidence to in implied warranty that the seed should be cover matters upon which the writings themistulicient for the purpose of sowing and selves were silent. It was said: Yothing raising a crop. It was said in the opinion : remained to complete the contract save the “The entire contract when made was execu delivery of the machines in accordance with tury, and it was to be executed and perform its terms. The terms of the contract, the exad afterward, and to be performed in parts tent of the obligation undertaken by the parund at different times. The seller was first ties, are embodied in and limited to what is to furnish the seed, and he did so in about expressed in the writing, and, as no words of 10 days after the contract was made, and of Warranty are employed, it will be conclusivecourse the seed was to be a kind of seed that ly presumed that no warranty was intended Would grow." This was necessarily implied or existed." This language had reference to from the fuct that Smith was to sow it and an attempt to prove an express warranty by ruise a crop therefroin, which the vendor of evidence of an oral, contemporaneous agreethe seed wils to purchase upon certain terms ment. In the concluding paragraph of the ind conditions mentioned in the contract. It opinion, Justice Pollock, speaking for the will be observed that warranty of quality court, observed that numerous cases had was one which the particular facts and air been cited upon the law applicable to implied cumstances of that case necessarily raised by warranties, and that they were inapplicable implication. The vendor did not deliver the to the case of an express warranty, and furkind of seed necessarily contemplated by ther remarked: “Ilad the defendant based both parties when the contract was made. his action for affirmative relief upon the exThe contra it was executory, and it is well | 'istence of an implied warranty, and had the settled thar a different rule obtains where trial court submitted this theory of the case goods are sold and delivered upon an execut to the jury, the argument so made would el contract, as in the present case. 15 A. & have been applicable to such a case, but canFX Ene, of Law, 1239.

not be given weight here." In Jerhem on Sales, f 1349, the author After the case was remanded, it was possays: "The implied warranty of fitness is sibly assumed from the remark quoted that

the same warranty could be established by purpose.' This principle, however, is limited parol evidence by merely amending the an to cases where a thing is ordered for a speswer so as to call the warranty an inplied, cial purpose, and cannot be applied to cases instead of an express, one. But nothing in where a special thing is ordered, althougn it the former opinion warrants the assumption. be intended for a special purpose. 1 ParIt appears, however, from the record, that sons on Contracts, 587. *

But it is the testimony at the last differs but slightly a rule of general application that warranties, from that introduced on the first trial. While whether express or implied, can only issue defendants were not permitted in so many from the contract itself, and it must be a lewords to testify to an oral agreement as to gal deduction, and cannot depend upon ex. quality and fitness, they were permitted to trinsic evidence, except as it inay be neces. testify to conversations between plaintiffs sary for the explanation of some latent amand Casper Brown, and representations to biguity. . . . In the present case, the him by them with respect to the quality and defendants contracted for the purchase and fitness of the machines to do the work his erection in their refrigerator of an apparatus mill required, and their advice and sugges patented by the plaintif, and called the 'Mctions to him in reference to making changes Cray Patent System of Refrigeratiou. Bein the mill to accomplish certain results, all yond the name, there is nothing to show that of which occurred before the written con it was anything in the nature of a refrigerattract was made. Thus, by parol evidence, ing process. The contract does not show much of which was the same as on the first that it was designed to preserve meats, or trial, defendants were permitted to establish that the defendants had anything to do with the identical defense which the former deci meats. It does not appear what use it was sion held could not be made, and extended by intended for, or that the plaintiff had any such proof the obligations of the contract to information upon the subject. No warranty cover matters upon which the contract is si can be implied from this that it would prelent. That there is no such magic in words serve meat for any particular length of must be apparent. The case in this aspect time." presents many points of similarity to that of In the case at bar, the machines are deStorage Co. v. Woods & Zent, 99 Mich. 209, scribed in the contract as "Wolf gyrators. 1 58 N. W. 320, 41 Am. St. Rep. 599. The No. 6-20 sieve 4 reduction machine. 1 No. written contract in that case was for the sale 6–30 sieve 6 reduction machine." It also and purchase of certain machinery for use appears that with the machines the manuin refrigeration, described as "our 20x40 re facturer was to furnish sieves to change the frigerator." The action was to recover the granulation of flour from coarse to fine, and contract price, and the defense was an ex that the machines were to be installed in a press warranty that the apparatus would flouring mill. The contract is silent as to preserve fresh meats from 30 to 50 days, and any special purpose for which they were purthat it failed to do so. The court instructed chased, and since the contract was for the the jury that the written contract could not sale of a specific, definite article, manufacbe varied by parol evidence, and withdrew tured and supplied to the trade generally by the defense of an express warranty, but gave the manufacturers, there was no implied an instruction that, if they found from the warranty that it would answer to or be suitevidence that defendants purchased the ap able for a particular purpose. The following paratus for a special purpose made known to language from Johnson V. Powers, 3 Pac. plaintiff, and relied upon the judgment and 625, 65 Cal. 179, is quoted with approval in knowledge of plaintiff, and not on their own, Rogers v. Perrault, 41 Kan. 385, 21 Pac. then there was an implied warranty that the

287 :

'If the contract between the vendor system furnished should be reasonably fit and vendee be reduced to writing, nothing and suitable for that particular purpose. In which is not found in the writing, except the opinion the court says: “The effect of that which is presumed by law from that these instructions, taken in connection with which is written, can be considered as a part the first mentioned, was to permit the jury of the contract.'” to find that there was no express warranty, But it is claimed that the defects which but that there was an implied one, based on rendered the machines unsuitable were la. the very evidence relied on to show the ex tent defects caused by the use of unseasoned press warranty ; in effect holding that, while lumber in constructing them. The findings parol evidence was inadmissible to show an establish as facts that plaintiffs, who were express warranty, it might be received to es dealers, and not the manufacturers, had no tablish an implied one. Implied warranties opportunity to see the machines until after are not unknown, and they are by no means they were delivered, and had no knowledge limited to parol contracts. Thus, there is or of the latent defects. There was no implied dinarily an implied warranty of title where contract on the part of plaintiffs that the ma. there is a contract of sale of personal prop terials of which the machines were conerty. Again: 'If a thing be ordered of the structed should be sound. “Where the venmanufacturer for a special purpose, and it dor is not the manufacturer, and the purbe supplied and sold for that purpose, there chaser knows this fact, the former is not is an implied warranty that it is fit for that responsible for latent defects, in the absence

of proof of an express warranty or of fraud the trial court made findings and conclusions and deceit upon the part of the seller.” 15 in favor of the plaintiff, and rendered judgA. & E. Enc, of Law, 1236.

ment thereupon, from which this appeal is From these considerations, it is apparent taken. that upon the findings plaintiffs were en It is contended by appellant that the titled to judgment establishing and foreclos evidence shows no negligence whatever upon ing their lien for the amount of the purchase his part, and that the negligence of the reprice of the machines less the amount paidspondent in accepting and cashing the checks for freight.

when it had at hand the signatures of the The cause will therefore be reversed and logging company's officers, by an examinaremanded for further proceedings in accord tion of which it would have detected a forance with these views. All the Justices con gery, is sufficient to defeat respondent's accurring.

tion. It is urged that the statute, as well as the common law, required the respondent

to know the signatures of its depositors, and (46 Wash. 657)

that, having accepted and paid the checks, it CANADIAN BANK OF COMMERCD v.

cannot now recover the money. It seems to BINGHAM.

us that the holdings of the court when the (Supreme Court of Washington. Aug. 1, 1907.)

case was here before are conclusive against BASKS AND BANKING_PAYMENT_OF FORGED

the appellant at this time. These checks CHECKS-RIGHTS AS BETWEEN BANKS. A bank, which pays forged checks drawn

were forgeries. They never had any value. on it to another bank, which has cashed the When the forger passed them, it was an act same, on subsequently discovering the forgery of fraud, and every one who advanced or and demanding the money paid to the other paid money as a consideration for one of bak before that bank has been placed in any worse position than it would have been, had

these checks did it as a result of deception, the drawee refused payment when the checks fraud, or mistake. Hence every one who were presented to it, may recover from such handled one of these checks and received other bank the amount so paid it.

money in consideration thereof thereby re[Ed. Note.--For cases in point, see Cent. Dig. vol. 6, Banks and Banking, 453.]

ceived something for nothing. As a general

proposition money so received cannot be withAppeal from Superior Court, Skagit Coun

held when demanded by the party who, by ty; Geo. A. Joiner, Judge.

fraud, misrepresentation, or mistake, paid Action by the Canadian Bank of Commerce

said money for something which he supposed against C. E. Bingham, doing business as C.

to be of value, but which as a matter of fact E. Bingham & Co., to recover money paid

and law was valueless. In the opinion handby plaintiff to defendant on forged checks.

ed down before the following appears: "CerFrom a judgment for plaintiff, defendant ap- tainly the governing principle upon which peals. Affirmed.

the respondent (now appellant] is entitled to Smith & Brawley, for appellant. Million, retain the appellant's money, if he is SD Houser & Surauger, for respondent.

entitled, is that by the action of the appel

lant he has been prevented from recovering ROOT, J. This case was before the court the money out of which he had been defraudonce heretofore, and may be found reported ed by the forger before the appellant had takin 30 Wash. 484, 71 Pac. 43, 60 L. R. A. 955, en any action in the premises; or, stated afto which reference is made for a more com firmatively, that he has been prejudiced by plete statement of the facts and for a dis the action of the appellant in paying the cussion and determination of most of the check, instead of allowing it to go to protest. legal propositions presented on the present This is in harmony with the undisputed appeal. At that time the action of the lower rule that a drawer or maker of a check, who court in sustaining a demurrer to plaintif's is deceived by a forgery of his own signature, complaint was held erroneous, and the case may recover the payment back, unless his was remanded for a trial. Upon the hearing mistake has placed an innocent holder of It was established that one of the forged the paper in a worse position than he would checks in question was presented to this ap have been in if the discovery of the forgery pellant at his banking house at Sedro-Wool had been made on presentation, and with the ley, by some one whom none of the bank of rule that allows the maker of a note, who ficers could recall, and cashed by appellant; pays it over his own forged signature, to the check being indorsed by the name of the recover, from the person who received it, payee, a person known to none of the officers for money paid by mistake, unless his negof the bank, nor to the logging company, ligence has caused loss to an innocent purwhose officers' names were upon the check, chaser. There are no arbitrary rules of law one genuine and one a forgery. The other governing these cases, and none are conchecks involved were presented to this ap tended for." pellant at his bank in Sedro-Woolley, by vari Under this ruling the respondent was enous business men in said town, they having titled to recover, unless respondent's neglicashed the same or received them in pay gence caused a loss to this appellant. It is ment for goods when presented in the course doubtless true that the respondent was guilty of business. At the close of the evidence of negligence in not promptly discovering the

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