fresh meats by the packer or slaughterer to a retailer for distribution, a warranty of wholesomeness or soundness should be implied, as a sound public policy demands that the doctrine of caveat emptor should be encroached upon rather than that the public health should be endangered." 469. Sale of Provender for Animals.-The principle that there is an implied warranty of soundness in the sale of provisions has been extended in some cases to the sale of provender for animals. On the other hand it has been expressly held that the exception to the general rule of caveat emptor in case of the sale of provisions for immediate consumption should be restricted to a sale of provisions for the consumption by man and that there is no implied warranty of soundness where the sale is of provender for cattle. Thus in a well considered case where the action was brought on an alleged warranty it appeared that a farmer bought of a miller a sack of bran for his cows. Before it was removed from the mill two copper clasps accidentally fell into it, without negligence on the miller's part, and one of the cows swallowed them and was killed thereby. The bran was part of a quantity on hand open to inspection. There was no express warranty. It was held that the buyer had no remedy against the seller.10 Likewise it has been held that where cotton seed hulls and cotton seed meal are sold to be fed to live stock, and the purchaser has an opportunity for inspection, there is no implied warranty of fitness; and the seller is not liable for injuries to the purchaser's cattle caused by such articles containing wire, nails, and other foreign substances, if he was not guilty 7. Fairbank Canning Co. v. Metzger, 118 N. Y. 260, 23 N. E. 372, 16 A. S. R. 753 (per Parker, J.). An additional reason given for this is that the packer is in a position analogous to a manufacturer and may be said to come within the general rule applicable to manufacturers (see supra, par. 464), because he purchases the cattle, determines whether they are healthy and in proper condition for food, and upon his skill in dressing and preparing the meat for transportation a long distance its quality and condition as an article of diet for the consumer largely depend. tle unsuited for the purpose.) See also Newell v. Reid, 189 Mich. 174, 155 N. W. 352, Ann. Cas. 1918B 224 and note; Beals v. Olmstead, 21 Vt. 114, 58 Am. Dec. 150; Warren v. Buck, 71 Vt. 44, 42 Atl. 979, 76 A. S. R. 754. Notes: 73 Am. Dec. 168; 102 A. S. R. 625; 22 L.R.A. 196; 15 L.R.A. (N.S.) 885; L.R.A.1917F 475; 4 Ann. Cas. 1125; 16 Ann. Cas. 499. 9. National Cotton Oil Co. v. Young, 74 Ark. 144, 85 S. W. 92, 109 A. S. R. 71, 4 Ann. Cas. 1123; Lukens v. Freiund, 27 Kan. 664, 41 Am. Rep. 429. 8. French v. Vening, 102 Mass. 132, Notes: 102 A. S. R. 625; 14 L.R.A. 3 Am. Rep. 440. (There is consid- 494; 21 L.R.A. 140; 22 L.R.A. 196; erable doubt whether this action was 15 L.R.A.(N.S.) 886; L.R.A.1917F in fact on an implied warranty rath- 475; 4 Ann. Cas. 1125; 16 Ann. Cas. er than an action of fraud for failure 499. to disclose an accident which was lia- 10. Lukens v. Freiund, 27 Kan. 664, ble to and did render hay sold for cat- 41 Am. Rep. 429. of any negligence.11 The reason given for the refusal so to extend the exception is that the preservation of human life and health is the foundation of the exception in case of a sale of food for domestic consumption, and this reason is wanting in the sale of provender for cattle, which can result, as in case of the sale of other personal property, in loss of or injury to property alone.19 470. Sale of Seeds. Where a particular brand or variety of seed is ordered from a dealer, and the kind or brand ordered is in fact furnished, it is held that there is no implied warranty that the seed is of a kind suitable for planting on the land of the buyer; 18 and the view is taken in some cases that from the mere sale of seed by one not the grower there is no implied warranty that the seed is in good condition. and reasonably suited for the planting and growth of a crop, that is, that it is fertile seed.14 The better view, however, seems to be that in the sale of seed necessarily intended for planting and which is totally unfit for seed if not fertile, a warranty will ordinarily be implied that it is fit for such purpose, that is, that it is reasonably fertile seed and will germinate if properly planted,15 and that it is reasonably free from impurities and noxious weed seeds; 16 and affirmations by the seller that seed sold is good seed or the like may, like other affirmations as to quality or the like, constitute what are generally classified as express warranties.17 Spring and winter wheat cannot ordinarily be determined by inspection, and ordinarily winter wheat is not fit for spring planting, and the question has frequently arisen as to the liability of the seller where seed winter wheat is sold by mistake for spring wheat and results in the buyer's loss of his crop. If the seller has knowledge that the wheat sold by him as spring wheat is in fact winter wheat he could undoubtedly be held liable on the ground of fraud.18 According to the better view where the buyer states that he wants spring seed wheat or seed wheat for spring planting, there is an implied warranty that the wheat sold is fit for the purpose for which it is intended, that 11. National Cotton Oil Co. v. Young, 74 Ark. 144, 85 S. W. 92, 109 A. S. R. 71, 4 Ann. Cas. 1123. 12. Lukens v. Freiund, 27 Kan. 664, 41 Am. Rep. 429. 13. Gardner v. Winter, 117 Ky. 382, 78 S. W. 143, 63 L.R.A. 647. Notes: 102 A. S. R. 623; 15 L.R.A. (N.S.) 872; 37 L.R.A. (N.S.) 82; Ann. Cas. 1918B 73. 14. Van Wyck v. Allen, 69 N. Y. 61, 25 Am. Rep. 136. Notes: L.R.A.1916C 1012; Ann. Cas. 1918B 74. 15. Butler v. Moore, 68 Ga. 780, 45 Am. Rep. 508; Shaw v. Smith, 45 Kan. 334, 25 Pac. 886, 11 L.R.A. 681; Rei ger v. Worth, 127 N. C. 230, 37 S. E. 217, 80 A. S. R. 798, 52 L.R.A. 362. Notes: 102 A. S. R. 623; 22 L.R.A. 189; 37 L.R.A.(N.S.) 81; L.R.A. 1916C 1012; Ann. Cas. 1918B 74. 16. Notes: 102 A. S. R. 623; 37 L.R.A. (N.S.) 82; L.R.A.1916C 1013; Ann. Cas. 1918B 79. 17. Reiger v. Worth, 130 N. C. 268, 41 S. E. 377, 89 A. S. R. 865. Notes: 37 L.R.A. (N.S.) 81; L.R.A. 1916C 1012; Ann. Cas. 1918B 73. See supra, par. 442 et seq., as to the effect of affirmations as to quality or condition as warranties. 18. As to the fraud of the seller generally, see infra, par. 619 et seq. is, that the wheat sold is spring wheat.19 It has been held, however. that though the buyer stated that he wanted wheat for spring planting and the seller also stated that the wheat shown the buyer was spring wheat, there was no warranty that the wheat was in fact spring wheat. where it was inspected by the buyer at the time of the sale. The court applied the theory that in sales of personal property on inspection without express warranty, the law does not presume an engagement on the part of the seller that the article sold is of the species contemplated by the parties, that though there may be some exceptions to this general rule as to sale on inspection, a sale of such an article as wheat is not one of them, that when the buyer has seen it, and gets what he saw, no warranty is implied that it is even properly described by the name which the seller gives to it.20 The rule that on a sale of a chattel by a manufacturer a warranty is implied that the article sold is free from any latent defects growing out of the process of manufacture is based on the presumed superior knowledge of the seller, and it is said that there is the same reason for implying a warranty on a sale of seeds by the grower that they are not defective from improper cultivation as for implying a warranty of freedom from defects in the manufacture, on a sale by a manufacturer of the article made by him. and the grower of seeds must be presumed to be cognizant of any omission, or negligence in cultivation, whereby they have been deteriorated or rendered unfit for use. On general principles a qualified express warranty relating to the fertility of seed sold will exclude any implied. warranty of its general fertility.2 471. Sale of Nursery Stock.-The general rule seems to be that, on a sale of nursery stock, such as fruit trees for planting, there is an implied warranty that the trees are reasonably fit for the purpose for which they are purchased; that they are true to name and will germinate and grow. In other words, they are warranted to be free from defects arising from negligent cultivation or handling. Thus where the evidence showed that the buyer made known to the seller the character of trees desired and the purpose for which they were intended, that the seller claimed to have such trees, and, on the buyer's order, sent to 1918B 73. 19. Fuhrman v. Interior, 64 Wash. 159, 116 Pac. 666, 37 L.R.A. (N.S.) 2. See supra, par. 451, as to when 89. As to the warranty arising from express warranty excludes implied warsale by description generally and especially as to seed, see supra, par. 445-449. 20. Lord v. Grow, 39 Pa. St. 88, 80 Am. Dec. 504. 1. White v. Miller, 71 N. Y. 118, 27 Am. Rep. 13. Notes: 102 A. S. R. 623; 14 L.R.A. 493; 37 L.R.A. (N.S.) 82; Ann. Cas. ranty. 3. Grisinger v. Hubbard, 21 Idaho 469, 122 Pac. 856, Ann. Cas. 1913E 87; Kelly v. Lum, 75 Wash. 135, 134 Pac. 819, 49 L.R.A. (N.S.) 1151. See also Frith v. Hollan, 133 Ala. 583, 32 So. 494, 91 A. S. R. 54. Notes: 49 L.R.A. (N.S.) 1152; Ann. Cas. 1913E 93. him the trees in question, it was held that there was an implied warranty that the trees had not been so far maltreated as to prevent them from growing. Under the general rule as to the effect of affirmations as to quality or condition,5 affirmations as to the quality or condition of nursery stock sold may constitute express warranties. So under the general rule as to warranties in case of sales by description, if nursery stock, such as fruit trees, are sold as and for a particular variety this may constitute a warranty as to variety. And it is held 6 that a nurseryman, accepting an order for fruit trees ordered by name, who assumes to fill the order by trees in part purchased from other dealers, assumes the risk that the trees may not be true to name and of the quality prescribed.9 472. Sale of Fertilizers.-Though a contrary view has been taken,10 it would seem on principle that, on the sale of a commercial fertilizer by one who did not manufacture it, there is no implied warranty that it is reasonably well adapted to the purpose for which it is purchased.11 And where a known and specific kind of fertilizer is ordered, even from a manufacturer of the article, although it is stated by the purchaser to be required for a particular purpose, still if the article called for is furnished, there seems to be no warranty implied. that it will answer the particular purpose intended by the buyer.12 Under an agreement to sell a certain brand of fertilizer, the seller is said to warrant the fertilizer to contain the particular ingredients of that brand, but there is no warranty implied that it will produce good results.18 473. Sale of Drugs.-In the sale of drugs, the ordinary purchaser not being skilled in the matter cannot tell one drug from another, and it is held in such a case that there is a warranty, on the part of the druggist, that the drug delivered is the one called for by the customer. 14 And this would seem to be especially true where a drug is sold to be taken internally by man so as to render the seller liable in case a dif 4. Kelly v. Lum, 75 Wash. 135, 134 101 N. E. 797, 50 L.R.A.(N.S.) 778. Pac. 819, 49 L.R.A. (N.S.) 1151. 5. See supra, par. 442 et seq. 8. Smielzger v. Tippin, 109 Ark. 275, 160 N. W. 221, 49 L.R.A. (N.S.) 1156; Shearer v. Park Nursery Co., 103 Cal. 415, 37 Pac. 412, 42 A. S. R. 125; Grisinger v. Hubbard, 21 Idaho 469, 122 Pac. 853, Ann. Cas. 1913E 87; Sanford v. Brown, 208 N. Y. 90, 101 N. E. 797, 50 L.R.A. (N.S.) 778. Notes: 49 L.R.A. (N.S.) 1151; Ann. Cas. 1913E 93. 9. Sanford v. Brown, 208 N. Y. 90, 10. Note: 102 A. S. R. 621. 11. Note: 102 A. S. R. 621. 12. Note: 102 A. S. R. 621. As to qualification of general warranty of fitness in case of a sale of specific articles, see supra, par. 461. 13. Note: 102 A. S. R. 621. 14. Jones v. George, 56 Tex. 149, 42 Am. Rep. 689, on second appeal 61 Tex. 345, 48 Am. Rep. 280. Notes: 102 A. S. R. 625; 14 L.R.A. 494; 22 L.R.A. 196. As to sales by description, see supra, par. 445 et seq. ferent and dangerous drug is delivered in place of the drug called for. as this would bring the case within the generally recognized rule under which an implied warranty of soundness is implied in the sale of provisions for home consumption.15 474. Sale of Animals.-As a general rule the doctrine of caveat emptor applies to the sale of animals, and there is no implied warranty of soundness,16 or of the breeding qualities of the animal sold, even though purchased for breeding purposes to the knowledge of the seller. In analogy to this it is held that there is no implied warranty in a contract for the service of a stallion for breeding that the animal is free from disease that may be transmitted to offspring.18 If, however, the buyer trusts the judgment of the seller, who is engaged in the business of raising, importing and selling stock to be used for breeding purposes, to select one fit for such purpose, it seems that there is an implied warranty of its fitness.19 The question as to when affirmations as to soundness or the like will be treated as warranties in the sale of animals is heretofore discussed.20 475. Sale of Machinery.-In case of the sale of machinery as an ordinary article of commerce, whether the seller is the maker or manufacturer or not, there is, according to the better view, no implied warranty that the machine will do work for which it is ostensibly intended. in any particular manner, though in some cases the view is taken that 15. Fleet v. Hollenkemp, 13 B. Mon. (Ky.) 219, 56 Am. Dec. 563. See supra, par. 467 et seq., as to the implied warranty of wholesomeness of provisions sold for domestic consumption. 16. Court v. Snyder, 2 Ind. App. 440, 28 N. E. 718, 50 A. S. R. 247; Hanson v. Hartse, 70 Minn. 282, 73 N. W. 163, 68 A. S. R. 527; Puls v. Hornbeck, 24 Okla. 288, 103 Pac. 665, 138 A. S. R. 883, 29 L.R.A. (N.S.) 202; Warren v. Buck, 71 Vt. 45, 42 Atl. 979, 76 A. S. R. 754; Lambert v. Armentrout, 65 W. Va. 375, 64 S. E. 260, 22 L.R.A. (N.S.) 556. Note: 29 L.R.A. (N.S.) 202. See supra, par. 452, as to the general rule of caveat emptor. 17. Scott v. Renick, 1 B. Mon. (Ky.) 63, 35 Am. Dec. 177; Thompson v. Miser, 82 Ohio St. 289, 92 N. E. 420, 19 Ann. Cas. 871; McQuaid v. Ross, 85 Wis. 492, 55 N. W. 705, 39 A. S. R. 864 and note, 22 L.R.A. 187. See also Hadley v. Clinton County Importing Co., 13 Ohio St. 502, 82 Am. Dec. 454. Notes: 102 A. S. R. 622; 22 L.R.A. 187; 19 Ann. Cas. 874; Ann. Cas. 1916A 573. 18. Briggs v. Hunton, 87 Me. 145, 32 Atl. 794, 47 A. S. R. 318. 19. Edwards v. Dillon, 147 Ill. 14, 35 N. E. 135, 37 A. S. R. 199; Merchants, etc., Sav. Bank v. Fraze, 9 Ind. App. 161, 36 N. E. 378, 53 A. S. R. 341. See also McCaa v. Elam Drug Co., 114 Ala. 74, 21 So. 479, 62 A. S. R. 88 (referring with approval to a case in another jurisdiction). But see Thompson v. Miser, 82 Ohio St. 289, 92 N. E. 420, 19 Ann. Cas. 871. Notes: 102 A. S. R. 622; 15 L.R.A. (N.S.) 856; 19 Ann. Cas. 874. 20. See supra, par. 450. 1. Seitz v. Brewers' Refrigerating Mach. Co., 141 U. S. 510, 12 S. Ct. 46, 35 U. S. (L. ed.) 837; Pullman's Palace Car Co. v. Metropolitan St. R. Co., 157 U. S. 94, 15 S. Ct. 503, 39 U. S. (L. ed.) 632; Davis Calyx Drill Co. v. Mallory, 137 Fed. 332, 69 C. C. A. 662, 69 L.R.A. 973; Ehrsom v. Brown, 76 Kan. 206, 91 Pac. 179, 15 L.R.A. (N.S.) 877; Lombard Water |