rule in Germany prior to the enactment of the Civil Code has also been that the seller warranted quiet enjoyment by the buyer and, therefore, that no cause of action arose until the vendor's possession has been interfered with.56 By the Civil Code, however, the seller is bound to make the buyer owner. 57 Possibly this may affect the German law in this particular.

§ 982. Implied warranty of quality in the Sales Act.

The Uniform Sales Act provides as follows: Sec. 15. "Subject to the provisions of this act and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows:

(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.

58

"(2) Where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be of merchantable quality.59

shall be liable to no warranty, he remains bound to a warranty against his own act; any contrary agreement is void. 1629. In the same case of a stipulation of no warranty, the seller, in the event of eviction, remains bound to return the price, unless the buyer knew, when he bought, the danger of eviction, or unless he bought at his own risk and peril."

56 Endemann, Einführung, 700. 57 Bürgerliches Gesetzbuch, § 433. 58 Kansas City Bolt Co. v. Rodd, 220 Fed. 750, 136 C. C. A. 356 (Ohio); Marmet Coal Co. v. People's Coal Co., 226 Fed. 646, 141 C. C. A. 402; Job v. Heidritter Lumber Co., 255 Fed. 311, (C. C. A.)( N. Y.); Gearing v.

Berkson, 223 Mass. 257, 111 N. E. 785, L. R. A. 1916, D. 1006; Pentland v. Jacobson, 189 Mich, 339, 155 N. W. 468. G. B. Shearer Co. v. Kakoulis, 144 N. Y. S. 1077; Marx v. Locomobile Co., 82 N. Y. Misc. 468, 144 N. Y. S. 937; Wasserstrom v. Cohen, 165 N. Y. App. D. 171, 150 N. Y. S. 638. There was held to be no implied warranty of food in a sale to a dealer. Baker v. Kamantowsky, 188 Mich. 569, 155 N. W. 430; Zielinski v. Potter, 195 Mich. 90, 161 N. W. 851.

59 Thornett v. Beers, [1919], 1 K. B. 486; Flaccomio v. Eysink, 129 Md. 367, 100 Atl. 510, 516; Maggioros v. Edson (N. Y. Misc.), 164 N. Y. S. 377.

(3) If the buyer has examined the goods, there is no implied warranty as regards defects which such examination ought to have revealed.60

'(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.61

"(5) An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade.62

"(6) An express warranty or condition does not negative a warranty or condition implied under this act unless inconsistent therewith." 63

This section follows substantially section 14 of the English act, though the American act uses the word "warranty." 64 The English statute was intended to be an exact codification of the previously existing common law, and the American act should be construed with this in mind.65

§ 983. No implied warranty of quality in the early law.

A development in the law of implied warranty of quality is to be observed similar to that already noticed in regard to implied warranty of title. There are early cases making it clear that in the absence of knowledge by the seller that the article which he sold was of bad quality he was not liable.66

69 Pentland v. Jacobson, 189 Mich. 339, 155 N. W. 468.

61 Quemahoning Coal Co. v. Sanitary &c. Co., 88 N. J. L. 174, 95 Atl. 986; Empire Cream Separator Co. v. Quinn, 184 N. Y. App. D. 302, 171 N. Y. S. 413; Sure Seal Co. v. Loeber, 171 N. Y. App. D. 225, 157 N. Y. S. 327; Matteson v. Lagace, 36 R. I. 223, 89 Atl. 713; Ohio Elec. Co. v. Wisconsin &c. Co., 161 Wis. 632, 155 N. W. 112; Northwestern Blaugas Co. v. Guild (Wis.), 171 N. W. 662.

62 Procter V. Atlantic Fish Co., 208 Mass. 351, 94 N. E. 281.

63 Pentland v. Jacobson, 189 Mich. 339, 155 N. W. 468.

64 In subsections (1-3), however, the

English act uses "condition." The American subsection (3) is a proviso of subsection (2) of the English act and the American subsection (4) a proviso of subsection (1). In subsection (1) after the word "judgment" the English act has the following words: “and the goods are of a description, which it is in the course of the seller's business to supply." The omission of these words seems to make the buyer's reliance the sole test. This doubtless means justifiable reliance, and whether the seller were a dealer would be important evidence.

65 See Kansas City Bolt Co. v. Rodd, 220 Fed. 750, 754, 136 C. C. A. 356. 68 Rolle, Abr. 90, pl. 4.

If, however, the seller knew that the goods he was selling were not merchantable, at least if he were a dealer, he was liable.67 These cases certainly express the limits of the law until the beginning of the nineteenth century.68 The earliest case where a broader rule is suggested is a Nisi Prius decision of Lord Ellenborough in 1815.69 Since then it has not been doubted that in some cases at least the seller of goods is under an obligation to furnish goods which are at least merchantable though no such agreement or representation was made. The question has resolved itself into this: In what cases is such a warranty implied and in what cases does the old maxim of caveat emptor still apply?

§ 984. Executory and executed agreements.

It is obvious that the question whether a seller is bound

67 Rolle, Abr. 90, pl. 1, 2, 3. See also 3 Bl. Comm. 165.

68 In Stuart v. Wilkins, 1 Doug. 18, 20, Lord Mansfield said: "Selling for a sound price without warranty may be a ground for an assumpsit, but in such a case it ought to be laid that the defendant knew of the unsoundness." In Parkinson v. Lee, 2 East, 314, in a sale of hops by sample with a warranty that the bulk corresponded to the sample, it was held that the law did not raise an implied warranty that the commodity should be merchantable though the price was a fair one for merchantable goods. Therefore, there being a latent defect unknown to the seller arising from the fraud of the grower from whom the seller purchased, the seller was not responsible though the goods turned out to be unmerchantable.

69 Gardiner v. Gray, 4 Campb. 144. In this case there was a bargain for the sale of twelve bags of waste silk, apparently specific bales not yet landed from the vessel in which they were imported. The bargain took place in London, but the silk was sent to the defendant at Manchester.

On examination he found it unmerchantable. Lord Ellenborough ruled as follows: "I am of opinion, however, that under such circumstances, the purchaser has a right to expect a salable article answering the description in the contract. Without any particular warranty, this is an implied term in every such contract. Where there is no opportunity to inspect the commodity, the maxim of caveat emptor does not apply. He cannot without a warranty insist that it shall be of any particular quality of 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. The question then is, whether the commodity purchased by the plaintiff be of such a quality as can be reasonably brought into the market to be sold as waste silk?" A similar decision was made in the same year in the case of Laing v. Fidgeon, 4 Campb. 169, 6 Taunt. 108.

by an implied obligation that goods shall be of merchantable quality or fit for a particular purpose is somewhat different in the case of a contract to sell goods by description and in the case of an executed sale of specified goods. If the seller contracts to sell goods by description it may well be argued that as matter of construction the contract means not any goods of that description but goods of fair or merchantable quality of that description." That is probably the actual meaning of the parties. On the other hand, if the seller agrees to sell a specified article which the parties have before them, it is clear that if an obligation is imposed upon the seller it cannot be derived from the terms of the bargain but is superadded by the law. The obligation is quasi-contractual, rather than contractual. Because of the difference just alluded to, some courts have been willing to infer an obligation to furnish merchantable goods if the bargain was executory, but not if it was executed. It is to be observed, however, that an executory contract to sell may relate to a specified defined article and on the other hand an executed sale may relate to goods identified only by description. The distinction which such courts have in mind, therefore, is not properly described as between executory contracts to sell and executed sales, but rather between bargains relating to specified property and bargains relating to property specified only by description. It is almost always true, however, that an executory

70 Dominion Coal Co., Ltd., v. Dominion Iron & Steel Co., Ltd., 25 T. L. R. 309; Baer v. Mobile &c. Mfg. Co., 159 Ala. 491, 49 So.,92; WeaverDowdy Co. v. Fritz, 110 Ark. 90, 160 S. W. 1085.

71 This is apparent from the language in some of the cases. Thus in Deming v. Foster, 42 N. H. 165, the court said: "In the case of executory contracts for the making or furnishing of goods or articles for a special use, the law implies a contract that the articles to be made or furnished shall be reasonably fit and proper for the use for which they

are ordered. And when articles thus

agreed to be made or furnished are delivered, the law implies a warranty that the articles are reasonably fit and proper for that use. But there is no implied warranty as to the quality of an article sold, nor of its fitness for any particular use, where there is a present sale of a particular existing article, then open to the examination and inspection of the purchaser, and where he requires no express warranty." It will be noticed that the cases put by the court where there will and where there will not be a warranty do not cover all cases. An executed sale of an article not open to inspection is not touched upon. See also Kinsley v.

contract to sell relates to unspecified goods, and an actual sale still more generally relates to goods specified in some other way than by a description of their character. It is for this reason that courts have referred to the distinction as one between executory contracts and sales rather than between bargains in regard to unspecified goods known only by description and goods otherwise identified. In whatever way the distinction be worded it is an important one. If the contract is for the sale of goods specified only by description, and there are various grades and qualities of goods fulfilling that description, it is a reasonable construction of the bargain that goods of merchantable quality are intended. Accordingly this construction is adopted unless something in the contract indicates a contrary intention. Nor is it material whether the seller is a manufacturer or a dealer or neither.72

How far the buyer may lose his right to object or to claim damages by accepting inferior goods is elsewhere considered.73 Moreover, even in an executory contract the terms of the bargain may be so specific that the contract itself marks out the extent of the seller's liability leaving nothing to implication.74

Gruppe, 241 Fed. 466, 154 C. C. A. 298; Timken Carriage Co. v. Smith, 123 Iowa, 554, 99 N. W. 183. But see Loxtercamp v. Lininger Implement Co., 147 Iowa, 29, 125 N. W. 830.

72 Laing v. Fidgeon, 6 Taunt. 108; Bunch v. Weil, 72 Ark. 343, 80 S. W. 582, 65 L. R. A. 80; McClung v. Kelley, 21 Iowa, 508; Russell v. Critchfield, 75 Iowa, 69, 39 N. W. 186; Atkins Bros. Co. v. Southern Grain Co., 119 Mo. App. 119, 95 S. W. 949; Deming v. Foster, 42 N. H. 165; Hart v. Wright, 17 Wend. 267; Howard v. Hoey, 23 Wend. 350, 35 Am. Dec. 572; Hargous v. Stone, 5 N. Y. 73; Dounce v. Dow, 64 N. Y. 411; Hadley v. Clinton County Co., 13 Ohio St. 502; Wilson v. Belles, 22 Pa. Super. Ct. 477; Fogel v. Brubaker, 122 Pa. St. 7, 14, 15 Atl. 692; Best v. Flint, 58 Vt. 543, 5 Atl. 192, 56 Am. Rep. 570; Hood v. Bloch, 29 W. Va. 244, 11 S. E. 910. "This is a

general rule, applicable alike to all whether they be manufacturers or dealers or merely sellers." Interstate Grocer Co. v. George Wm. Bentley Co., 214 Mass. 227, 101 N. E. 147. Cf. Coleman v. Hendee, 158 N. Y. App. Div. 461, 143 N. Y. S. 587. See also Meraux v. Kenilworth Sugar Co., 135 La. 99, 64 So. 974; Bigman v. Lorio, 135 La. 285, 65 So. 266.

73 See supra, §§ 700 et seq.

74 In Rollins Engine Co. v. Eastern Forge Co., 73 N. H. 92, 59 Atl. 382, 68 L. R. A. 441, the defendant, pursuant to an order, agreed to procure the necessary steel and forge it into a specified shape with the required finish, to be used by the plaintiff for a piston rod for an engine to be sold by the latter. It was held that the measure of the defendant's liability was ordinary care in selecting the material and forging it according to