express term of the contract of sale that the cloth should be efficiently woaded and dyed so as not to fade unduly. 4. That the cloth was not merchantable as worsted coating, and was not properly manufactured and suitable to be made up into coats in the ordinary course of tailoring, and was not efficiently woaded and dyed within the meaning of the contract. 5. That the cloth was sold by sample in the sense that it was to be similar to a sample produced in respect of weight and quality, and that the term "quality" covers strength as distinguished from rottenness in cloth, but the judge is not satisfied that the term quality has been ordinarily applied to such a defect as is alleged to exist in the cloth delivered under the contract, that is to say, slipperiness of weft under warp. 6. That the cloth did correspond with the sample. 7. That the sample was made to the defendants' order, and was seen and approved of by them as to pattern, colour, and generally as to handle. 8 and 9. That the defects both of structure and colour in the cloth and in the sample were latent, and were not apparent or discoverable upon such inspection as was ordinary and usual upon sales of worsted cloths of this class. The Court of Appeal (Lord Esher, M. R., and Fry, L. J.) affirmed the findings of Day, J. From this decision the present ap peal was brought. * * * EARL OF SELBORNE. * * As to so much of this defence to the counterclaim as turns on the question of fact, whether the alleged defect in the cloth existed or not (by which I mean existed as a defect, causing coats made of it in the manner usual among clothiers and tailors to give way under a strain which goods of the same class, such as were generally known and used in the trade, ought to resist) I think your Lordships must, on the principle on which the Court of Appeal acted, take the existence of the defect, in a degree sufficient to render the cloth unmerchantable for the purposes for which goods of the same general class had previously been used in the trade, to have been sufficiently established. That question depended in part on practical demonstration by skilled witnesses in the presence of the Court, followed up and further verified by the judge himself. Of all possible kinds of evidence, this appears to me to be the most unfit for review by a Court of Appeal. So far, therefore, I think the fact must be assumed in the respondent's favour, on whom the burden of proof, upon that point, undoubtedly lay. It remains to be considered, whether this was a defect of quality against which there was an implied warranty by the appellants, under all the circumstances of the case. That it was a defect of quality seems to me indisputable; and, if it was known to the respondents when they gave the order, or if (as between themselves and the appellants) they ought to be taken as having discovered, or as having had means which they ought to have used of discovering it from the samples, I should hold, that it was covered by the word "quality," as used in the contracts, and that there was no implied warranty against it. But, if it was a latent defect, of which knowledge, or means of knowledge which ought to have been used, could not properly, under the circumstances, be imputed to the respondents, then I think that the word "quality" as used in the contracts, ought to be restricted to those qualities which were patent, or discoverable from such examination and inspection of the samples as, under the circumstances, the respondents might reasonably be expected to make; and that it cannot be extended to defects in the texture of the samples, rendering the cloth so manufactured unmerchantable for the purposes for which the order was given, of which such examination and inspection would give the merchants, practically, no notice. * * In the present case the defect arose out of the want of sufficient connection or cohesion in the texture of the cloth between the warp and the weft. In all goods of the class called "corkscrew twills," the weft lies hidden inside, the surface on both sides being warp. * * There was, in point of fact, nothing to put the respondents on their guard against any such defect; and they had, in my opinion, a right to assume that the appellants, accepting the order, could and would. produce and deliver a good article, having the weight and all the other apparent qualities of the samples, which would be as merchantable for coatings as other articles of the same class previously known in the trade. * Lord HERSCHELL. My Lords, I think that the general principles of law which have to be applied to the facts of this case are well settled and beyond question. It was laid down in Jones v. Bright (1) that where goods are ordered of a manufacturer for a particular purpose, he impliedly warrants that the goods he supplies are fit for that purpose. This view of the law has been constantly acted upon from the time of that decision, and was not impeached by the learned counsel for the appellants. It is equally well settled that upon a sale of goods of a specified description, which the purchaser has no opportunity of examining before the sale, the goods must not only answer that specific description, but must be merchantable under that description. This doctrine was laid down in Jones v. Just, L. R. 3 Q. B. 197, where all the previous authorities on the point were reviewed. In the case of Mody v. Greyson, L. R. 4 Ex. 49, in the Exchequer Chamber, the decision in Jones v. Just was approved of and acted upon, and it was further held that the implied warranty that the goods supplied are merchantable was not absolutely excluded by the fact that the goods were sold by sample, and that the bulk precisely corresponded with it, but was only excluded as regards those matters which the purchaser might, by due diligence in the use of all ordinary and usual means, have ascertained from an examination of the sample. I think that the law enunciated in these cases is sound and not open to doubt. * * * The question arises whether, in these circumstances, the plaintiffs have complied with their contract by delivering coatings precisely corresponding in quality and weight with the patterns, or whether they are liable to the defendants. * * * It is true that the purpose for which the goods were required was not, as in Jones v. Bright, 5 Bing. 533, stated in express terms, but it was indicated by the very designation of the goods, "coatings." I think that upon such an order the merchant trusts to the skill of the manufacturer, and is entitled to trust to it, and that there is an implied warranty that the manufactured article shall not by reason of the mode of manufacture be unfit for use in the manner in which goods of the same quality of material, and the same general character and designation ordinarily would be used. I think too that where the article does not comply with such a warranty it may properly be said to be unmerchantable in the sense in which that word is used in relation to transactions of this nature. * There is no doubt that the implied warranty will be excluded as regards any defects which the sample would disclose to a buyer of ordinary diligence and experience. The inquiry, therefore, arises whether the defendants by "due diligence in the use of all ordinary and usual means" would have detected in the patterns the defects of which they now complain. I think not. What is "due diligence" must depend upon the circumstances. Having regard to the order given in the previous year, and the mode in which that order was fulfilled, I think that when the defendants made the contract there was nothing which could reasonably lead them to anticipate that the patterns represented goods possessing the defect which was, in fact, inherent in them. And I am satisfied upon the evidence that the defendants who, undoubtedly, did not discern the defect, did not fail to do so from neglecting to use the means usually adopted by buyers under like circumstances. I have therefore arrived at the conclusion that the learned judge who tried the case took a correct view of the facts on this part of it, and that his decision was properly affirmed by the Court of Appeal. SECTION 8.-IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE Sales Act, Section 15. (1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose. Section 15. (3) If the buyer has examined the goods, there is no implied warranty as regards defects which such examination ought to have revealed.. Section 15. (4) In the case of a contract to sell or a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose. One may desire to purchase some article to be used in the accomplishment of a certain result. He may not know what article is best suited to his purpose. The prospective purchaser may explain this situation to some one competent to select the particular article. During the negotiations it is easily conceivable that the seller will make an express warranty but if he does not do so the law implies a warranty that the goods sold are reasonably fit for the particular purpose. This warranty has a very wide application. It applies to all sellers. The question whether it is to be implied in a particular case is essentially a question of fact. It is easier to conclude that the buyer relied upon the seller's skill or judgment in contracts to sell and of sale of goods identified by description than it is when the contract to sell or sale concern goods identified in some other way, as when the subject of the bargain is physically present and open to actual examination by the buyer. When the goods are to be identified by description and the seller makes known the particular purpose for which the goods are required, evidence that the buyer asked for something by its patent or trade name would be almost conclusive evidence that the buyer relied upon his own judgment. Even in a sale of goods, physically present, it is still possible for the buyer to rely upon the seller's skill or judgment. This opportunity for inspection or actual inspection is evidence that the buyer relied on his own judgment, but it is not conclusive. In sales of machinery and mechanical devices the warranty of reasonable fitness for a particular purpose is common. This warranty should not be confused with that of merchantability. The warranty of fitness for a particular purpose, in some cases, will be the equivalent of merchantability, in others, it may be greater or less than that of merchantability. If a buyer desired a machine which could be used to thrash wheat, oats, barley and flax. and the machine would properly thrash the grains but would not thrash flax, there would be a breach of the warranty though obviously the machine was merchantable. It is a question of fact in each case. For what purpose were these goods intended? Did the buyer rely upon the seller's skill or judgment? Were the goods reasonably fit for the purpose made known to the seller? HOYT v. HAINSWORTH MOTOR CO. (Supreme Court of Washington, 1920. 112 Wash. 440, 192 Pac. 918.) MAIN, J. This is an action for damages for breach of an alleged implied warranty in the sale of an automobile. The case was tried to the court and a jury, and resulted in a verdict for the plaintiff. * The defendant appeals. * The appellant is * engaged in the business of selling automobiles at Seattle, Wash. On April 5 it sold to the respondent a new 1918 model, six-cylinder Oldsmobile. At the time the car was sold the appellant had on the floor of its showroom this particular car. It did not, however, sell this car, but sold a car of the model described. The respondent saw and looked at the car that was in the showroom. A few days after the respondent had agreed to purchase a car, the appellant delivered to him the car which he looked at in the showroom, and then told him that it was the same car. The respondent operated the car after it was delivered to him for a period of approximately 11 months. The car was defective, in that the pistons were a little too small for the cylinders. The car did not prove to be satisfactory, and after having operated it for the time mentioned the present action was instituted, for the purpose of recovering damages for a breach of implied warranty. It should be noted and kept in mind that the appellant was not the manufacturer of the automobile, but simply a dealer. The theory of the respondent that the sale was not of a particular car, but of a particular model will be adopted. The appellant claims that, since it was a dealer, and not a manufacturer, in selling the car there was no implied warranty against latent defects. The respondent claims that, since he purchased, not a specific car, but a car of a particular model, even though the appel lant were a dealer, there would be an implied warranty against latent. defects, such as ordinary inspection would not disclose. The defect. in this car was latent, and one that ordinary inspection would not disclose. The controlling question is whether, under the facts stated, the appellant as a dealer is liable upon an implied warranty; there, being no express warranty. Upon the question as to whether the dealer is liable upon an implied warranty for a latent defect in an article sold, the decisions of the various courts that have passed upon the question are divided. In some it is held that there is such an implied warranty. The majority of the courts, however, in this country hold that in the case of the dealer, as distinguished from the manufacturer, there is no such implied warranty. Williston on Sales, § 233. This court, in Hurley-Mason Co. v. Stebbins, Walker & Spinning, 79 Wash. 366, 140 Pac. 381, L. R. A. 1915B, 1131, Ann. Cas. 1916A, 948, has adopted the majority rule; that is, that a dealer does not impliedly warrant against defects not discoverable by ordinary inspection and tests. * * * Under the undisputed facts in the present case, there was a sale of an automobile of known manufacture. There is a rule collateral to that above referred to as the majority rule, to the effect that where an article of known manufacture is made by one not the vendor, and the vendee knows this fact, there is no implied warranty by the dealer against latent defects. * * There is no escaping the conclusion that the appellant in this case sold to the respondent an article of known manufacture, of which the vendor or dealer was not the builder. The case comes squarely within this rule. The appellant relies upon the rule that, where goods. of some specific kind are ordered of the manufacturer or dealer, which the buyer has neither inspected nor selected, there is an implied warranty that the article delivered shall be of fair average quality or goodness according to its kind, and free from remarkable defects. Mechem on Sales, § 1340. But under this rule, as pointed out by the same author in section 1345, before a dealer can be held liable on an implied warranty, the conditions stated in the rule must be present, "* * namely, an executory agreement by the dealer to supply an article not yet ascertained, but left to be determined by him according to his own judgment, in view of the purpose to be subserved by it as communicated to him by the buyer.' This case, however, does not come within this rule. Nothing was left to be determined according to the judgment of the appellant, and his duty was fulfilled when he delivered a car of the particular model contracted for. * To review the many authorities cited in the respondent's brief and distinguish them seriatim would extend this opinion to an unreasonable length and serve no useful purpose. Generally speaking, it may be said that the cases cited fall into one of the four following classes: First, they are cases that have adopted what is called the minority rule, and not the rule of the majority, as adopted in the Hurley-Mason Case. Such cases would not be persuasive in this jurisdiction, so long as the rule of the case referred to stands. Second, cases where there is an express warranty. Third, cases where the purchaser desires an article for a specific purpose, and communicates this purpose to the dealer, and the latter undertakes to furnish an article suitable for the purpose specified. * Fourth, where goods of |