the safe was delivered to the plaintiffs in compliance with the terms of the written order. Does this order contain what in law amounts to a warranty? There are no words in it of express warranty. Does an order, however, for a fireproof safe, imply a warranty? *

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There is nothing in this case indicating that the safe purchased by the plaintiffs was manufactured specially for them, but the fair inference is that it was one of a kind of safes which the defendants manufactured for sale to whomsoever would buy. It is designated in the order as a "No. 4 fireproof safe," and the order provides that it shall be one of the defendant's latest styles and improvements; thus clearly indicating that it is one of a kind of safes manufactured by the safe and lock company. "There is in America an implied warranty of identity; namely, that the article shall be of the kind or species it purports to be or is described to be,-that is, that the article delivered shall be the same thing contracted for." Benj. Sales (6th Ed.) 636. This proposition is illustrated in the following cases:

In Henshaw v. Robins, 9 Metc. (Mass.) 83, 43 Am. Dec. 367, a sale and bill of parcels of two cases of indigo was made. It was shown that the article paid for and delivered was not indigo at all, but composed of Prussian blue, chromate of iron, and potash, and worthless for any purpose. It was held that the description of the article inserted. in the bill of parcels amounted to a warranty that the article was such as represented. In Hawkins v. Pemberton, 51 N. Y. 198, 10 Am. Rep. 595, it was held that the sale of an article as blue vitriol amounted to a warranty that it was such. In Wolcott v. Mount, 36 N. J. Law, 262, 13 Am. Rep. 438, it was held that a sale of seed which the seller said was early strap-leaf, red-top turnip seed was equivalent to a warranty that it was such, and that the purchaser might recover the difference between the market value of the crop raised and the same crop from such seed as was ordered. In White v. Miller, 71 N. Y. 118, 27 Am. Rep. 13, it was held that, on a sale of "large Bristol cabbage seed" to a market gardener, there was an implied warranty that the seed was not only raised from such stock, but free from any latent defect arising from the mode of cultivation, and would produce that kind of cabbage. In Jones v. George, 61 Tex. 345, 48 Am. Rep. 280, it was held that a sale by a druggist to a planter of an article as Paris green implied a warranty that it was that substance.

There is no doubt, under the authorities, that the article sold must answer in kind to the description under which it is sold, and that there is an implied warranty that the article delivered is such an article as the name under which it is sold indicates. When, however, the question arises whether an article is of a particular quality or degree of excellence, unless it is designated by some term which is descriptive of the article and calls for a particular quality, the general rule is that no warranty of quality will be implied. In Wolcott v. Mount, supra, it was said: "In general, the only contract which arises on the sale of an article by a description, by its known designation in the market is that it is of the kind specified." In Winsor v. Lombard, 18 Pick. (Mass.) 57, it was held that, where a large number of barrels of mackerel branded under the inspection laws as No. 1 and No. 2 mackerel were sold in the spring with that description of them in the bill of parcels, it was not a warranty that the mackerel were free from rust, although it appeared that mackerel affected by rust are not considered as No. 1 and No. 2. In Gossler v. Refinery, 103

Mass. 33, it was held that "one who agreed to sell 'Manilla sugar to refiners, and delivered to them what is usually called in commerce by that name, can, in the absence of fraud, misrepresentation, or warranty, recover the agreed price, though the article delivered contained more impurities than sugar known under that name usually does."

The case of Shisler v. Baxter, 109 Pa. 443, 58 Am. Rep. 738, seems to be opposed to White v. Miller, supra, holding that the sale of seed as Wakefield cabbage seed did not amount to a warranty that it was such, but was a representation as to quality. In Towell v. Gatewood, 2 Scam. Ill. 22, 33 Am. Dec. 437, a bill of sale of good first and second rate tobacco was made. The court refused to treat this as a warranty, but rather as an expression of opinion as to the quality of the article sold, concerning which the buyer should have relied on his own judgment or obtained an express warranty. "The mere description of iron sold as mill iron in a bill rendered to the purchaser will not amount to a warranty that the same is of the quality or grade described, but will be regarded as a mere statement or expression of opinion as to the quality." Iron Works v. Moore, 78 Ill. 65. See, also, Ryan v. Ulmer, 108 Pa. 332, 56 Am. Rep. 210; Dounce v. Dow, 64 N. Y. 411.

In Fraley v. Bispham, 10 Pa. 320, 51 Am. Rep. 486, it was held that a sale bill of superior sweet-scented Kentucky leaf tobacco affords no evidence from which the jury may infer a warranty that it is either superior or sweet scented. The case of Shaw v. Smith, 45 Kan. 334, 25 Pac. 886, was on a contract for the sale of flaxseed, which the buyer agreed to sow, and sell the crop to the seller on certain terms stated in the contract. The seed proved worthless, and did not grow. It was held that under the contract, and in view of the purposes for which it was purchased, the buyer might recover as upon a warranty. In that case the purposes of the contract did not end with the delivery of the seed to the buyer, for he was obligated to sow the seed, and to sell the crop which it might produce to the vendor. Under such a contract, it was held that a warranty of the fitness of the seed for the purposes specified in the contract would be implied.

In the case under consideration the plaintiffs ordered a fireproof safe. There is no proof, nor was it in fact claimed at the trial, that the article delivered did not answer the description; that is, that it was not such an article as is generally known and designated as a "fireproof safe." The evidence shows that it was manufactured and placed on the market in the same way that other fireproof safes were made. "Fireproof" is defined by Webster: "Proof against fire; incombustible." The case of Hickey v. Morrell, 102 N. Y. 454, 7 N. E. 321, 55 Am. Rep. 824, was an action against a warehouse. man to recover for goods destroyed by fire in a warehouse represented to have a fireproof exterior. It appeared that the window frames and sash were wooden, and that there were no outside shutters, and it was held that the building could not be deemed fireproof. In the course of the opinion it is said: "Here the allegation is that the exterior of the building is fireproof. It necessarily refers to the qual-ity of the material out of which it is constructed, or which forms its exposed surface. To say of any article it is fireproof conveys no other idea than that the material out of which it is formed is incombustible." In the case of Insurance Co. v. Hird, 4 Tex. Civ. App. 82, 23 S. W. 393, in an action on a fire insurance policy which stipulated

"that the assured would keep his books in a fireproof safe, and that in case of loss he would produce the books, and on failure to so produce them the policy would become void. The books were in good faith kept in a safe of the kind generally known and reputed as fireproof, but which failed to preserve them from destruction by fire. Held, that the insured had not warranted the safe to preserve the books, and that he complied with the condition."

It is not claimed in this case that the safe itself was constructed of combustible materials, nor that it was burned, or even greatly damaged by fire. The plaintiffs seek to recover solely for damages resulting from the burning of articles deposited in the safe. There was no contract or representation with reference to the degree of heat, or the length of time when exposed to a fire, against which the safe would afford protection. Safes denominated as "fireproof" are made of various sizes, capacities, and styles. If the outside be made of iron, while that metal is commonly regarded as incombustible, because it will not burn, it yet is not indestructible by fire. It is a matter of common knowledge that iron will melt when subjected to a sufficient degree of heat. To imply a warranty that the safe would protect its contents against any given exposure to fire, we think, would be to imply a wairanty of quality, and that altogether indefinite in its terms, and imposing a liability which might be immensely disproportionate to the sum received. The recovery in this case was for more than three times the price of the safe.

We are of the opinion that it was incumbent on the plaintiffs to inspect the safe, when they received it, for the purpose of ascertaining whether it was of the kind specified in the order; that, if it was so, no warranty of quality was implied, and no recovery can be had for the destruction of its contents. The judgment is reversed.

LISSBERGER v. KELLOGG et al.

(Supreme Court of New Jersey, 1909. 78 N. J. Law, 85, 73 Atl. 67.) Action by Edmund Lissberger against David M. Kellogg and others. Verdict for plaintiff, and defendants obtained a rule to show cause why a new trial should not be granted.

SWAYZE, J. The action is for damages caused by the failure of the defendants to deliver wool in accordance with the contract between them and the plaintiff. The plaintiff is a wool merchant in New York. The defendants are wool brokers and dealers at Buenos Ayres in the Argentine. In the summer of 1905 the plaintiff ordered some 30 bales of wool, of which 10 bales were to be Lincoln, 10 bales 1/4 blood. and 10 bales 3%. The order was accepted, but 35 bales were shipped instead of 30. The invoice described the wool as composed of Lincoln 14 blood, 8, 12, and 5%, and the specifications described them as 10 bales Lincoln, 11 bales 14 blood, 10 bales 3% Lincoln, 4 bales 1/2 Lincoln. This wool arrived in New York December 26, 1905. Prior to its arrival, and on December 5th, the plaintiff ordered defendants to buy 200 bales, one-half of which was to be 3% and half of which was to be 14; and on December 18th ordered them to buy 100 bales, half of which was to be % and half 14. These orders were duly accepted, and the wool shipped in January, arriving in New York in February. The two lots of 200 and 100 bales were sold in advance.

of their arrival, by the plaintiff, to the Cleveland Worsted Mills of Cleveland, Ohio, and shipped through to them directly from the steamer, in bond. The wool proved to be inferior in quality to the description.

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The defendant next contends: That the sale in this case was a sale by sample, and, so far as the 300 bales is concerned, that they were equal to the sample of 35 bales; that, so far as the 35 bales was concerned, they were a mere sample shipment, and the quality was immaterial. We think the defendant is wrong in both contentions. The letter ordering the first shipment distinctly said that the wool was to be one-third Lincoln, one-third 14 blood, and one-third 3%, and this order was accepted. It was clearly a sale by description. So, too, the cables did not order the wool similar to the sample lot. In fact, it would have been impossible, for at the time the cables were sent the first shipment had not arrived in New York. Both the cables ordered wool half % and half 14. This also was clearly a sale by description, and the trial judge should so have charged. Instead of doing so, he charged that it was for the jury to say whether the plaintiff was to get the grades generally known to the trade by the description, or whether he was to get the same kind or similar kinds that he had been receiving in prior years. This error, however, was injurious to the plaintiff, and not to the defendants. He further charged that "the rule as to selling by sample is this: That what is sent thereafter must substantially comply with the sample, and, if it does not, the purchaser is under no obligation to keep it."

As applied to the present case, this charge also was inaccurate. The true rule prior to our codification of the law relating to sales is thus stated in the last English edition of Benjamin on Sales (page 616): "The implied condition that goods bought under specified commercial description should conform therewith is not excluded by the fact that the sale is by sample, or even after an inspection of the bulk. A sample is looked on in such case as a mere expression of the quality of the article, and not of its essential character, and notwithstanding the bulk be fairly shown, or agree with the sample, yet, if the bulk does not reasonably answer to the description, the seller is liable." *The same rule of law is stated in Sales Act 1907 (P. L. p. 316) 14. This act did not take effect until after the transactions now in question, but it was a mere codification of the then existing law in this respect. The charge of the court, while erroneous, was injurious only to the plaintiff, and the defendant is not injured thereby. *

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The plaintiff was allowed to recover the following items: (1) The difference between the purchase price paid by him and the amount received on the sale; (2) the loss of profits on the sale to the Cleveland Worsted Company; (3) damages paid that company to settle its claim against him; (4) freight on wool shipped from Cleveland to Boston for resale. It was proper to include all of these items in the plaintiff's claim for damages. * * *

The rule is discharged, with costs.

SECTION 6.-IMPLIED WARRANTY THAT THE GOODS SHALL CORRESPOND TO THE SAMPLE

Sales Act, Section 16. In the case of a contract to sell or a sale by sample-(a) there is an implied warranty that the bulk shall correspond with the sample in quality. (b) There is an implied warranty that the buyer shall have reasonable opportunity of comparing the bulk with the sample, except so far as otherwise provided in Section 47(3). (c) If the seller is a dealer in goods of that kind, there is an implied warranty that the goods shall be free from any defect rendering them unmerchantable, which would not be apparent on reasonable examination of the sample.

Where a sample is exhibited by a seller to a buyer and a sale results we may have one of three situations which are distinguishable:

(1) If the seller has said: "I warrant the goods which I am offering you to be precisely like this sample both as to kind and quality," we then have an express warranty, where the sample has merely performed the same function that, in the absence of a sample, would have been performed by words descriptive of the kind and quality.

(2) If the seller, although exhibiting a sample, does not employ language during the negotiations which amounts to an express warranty, there may or may not be an implied warranty that the goods will all be like the sample. As a general rule, no doubt, the exhibiting of the sample would be under circumstances where it was reasonable to infer that the representation thus made was that the goods would be like the sample. Whenever we may interpret the negotiations in this manner we have what the Sales. Act calls "a contract to sell or a sale by sample." The situation is closely analogous to the warranty that the goods shall correspond to the description, in contracts to sell or a sale by description. By "description" here was meant the language which furnished. other means of identifying the goods. If there were statements added regarding quality for the purpose of inducing the purchase these statements would constitute express warranties. So in contracts to sell or sales by sample, the implied warranty that attaches is not one of quality, but of identity-i. e., that the bulk of the goods will be like the sample. True subsection (c) of Section 16 does add a warranty of quality in certain cases; i. e., where the sale was by a dealer, but not otherwise. This is the warranty of merchantability, but it owes its existence solely to subsection (c) and not to subsection (a), just as there is added the warranty of merchantability in sales by description by dealers in Section 15 (2); Section 14 not imposing it.

The warranty of merchantability, in sales by description and in sales by sample, is the subject of the next section. The analogy

B.&B.Bus. LAW-73