sells it for a particular purpose, he undertakes that it shall be fit for that particular purpose."

§ 51. Same: Seller not a producer of article sold. In that case, and in Kellogg Bridge Company v. Hamilton (29), the leading case in this country, the seller was a manufacturer. In a majority of the courts in this country the same principle does not apply when he is merely a dealer. In Dounce v. Dow (30) there was a sale of a certain amount of "XX pipe iron," which proved to be rotten and worthless. This quality could have been ascertained by the purchaser before using by melting or by breaking, but he made no examination and used half the iron up before discovering its defect. The seller was a dealer in iron and acted in good faith. be no implied warranty. It was said by the court: "The plaintiff was not a manufacturer but a dealer in 'pig metals,' and was not presumed to know the precise quality of every lot of pigs bought and sold by him, bearing that brand, and hence cannot be held to have warranted that the pigs in question were of any certain quality.

There was held to

There was no fraud. Both parties supposed, doubtless, that the iron was first quality for the purpose for which it was intended. But it is not enough that the plaintiff knew such purpose. If the defendants (purchasers) had ordered XX pipe iron, which was tough and soft, and fit for manufacturing agricultural implements, and the plaintiff (seller) agreed to

(29) 110 U. S., 108. (30) 64 N. Y., 411.

deliver iron of that quality, a warranty would have been established."

It will be noticed that under the Sales Act (§ 48, above) the principle is made to apply to anyone, whether a manufacturer or not, if it appears that the buyer relies on the seller's skill or judgment. This seems the better doctrine. It was adopted by the Vermont court in Wing v. Chapman (31), where it was said: "The question has been much discussed whether this doctrine applies in cases where the seller was not the manufacturer of the goods sold; but it is now settled that it applies generally to all sales of property for a special purpose, if the sale is made on the judgment and skill of the vendor.'

§ 52. Same: Sales of food. In the sale of articles of food by a manufacturer or common dealer, there is an implied warranty that they are fit for food, but there is no such implied warranty in case the seller is not a manufacturer or dealer. In Burnby v. Bollett (32) the defendant bought the carcass of a pig, from a purchaser in a public market, and left it there to take away later. In the meantime he sold it to the plaintiff, without any warranty. There was a secret defect, not known to any one, and it turned out to be measly. It was held that no warranty of soundness was to be implied. Had the seller been himself a dealer, it would have been otherwise, especially if the buyer was buying for immediate consumption.

§ 53. Same: Examination by buyer. Trade usage. Where the buyer has examined the goods, or has had the

(31) 49 Vt., 33, 35.

(32) 16 M. & W., 644.

opportunity to examine them, there is no basis for an implied warranty unless the defects be latent, i. e., defects which cannot be discovered by inspection. That an implied warranty may be annexed by the usage of trade is merely in accord with the general rule of law, that the parties to any contract are bound by the usages of trade. They are not bound by any usage which is inconsistent with the general rules of law or with the terms of the contract they have made.

§ 54. Sale by sample. There is a sale by sample only when it is understood by the parties, as one of the terms of the contract, that it is to be a sale by sample. In Barnard v. Kellogg (33) there was there was a sale of wool. Samples were sent, at the request of the purchasers, who offered to take the wool if equal to the samples furnished. The seller accepted the offer, provided the purchasers examined the wool on a certain future day and reported whether or not they would take it. One of the purchasers examined four bales and was offered an opportunity to examine the whole lot. It was afterwards found that a portion of the bales were falsely packed, by placing in the interior damaged wool and tags. The seller acted in good faith. It was held that this was no sale by sample, the court saying: "Both sides understood that the buyer, if he bought, was to be his own judge of the quality of the article he purchased. Barnard expressly stipulated, as a condition of sale, that Kellogg should examine the wool, and he did examine it for himself. If Kellogg

(33) 10 Wallace, 383.

intended to rely on the samples as a basis of purchase, why did he inspect the bales at all, after notice that such inspection was necessary before the sale could be completed? His conduct is wholly inconsistent with the theory of a sale by sample."

§ 55. Implied warranties in sale by sample. "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" (34). As the buyer may reject the goods bought by sample, if they are not equal in quality to the sample, that they shall correspond amounts to a condition. The contract is not performed by supplying goods of an inferior quality.

"(b) There is an implied warranty that the buyer shall have a reasonable opportunity of comparing the bulk with the sample, except so far as is otherwise provided in section forty-seven, clause 3" (35.) This exception is where the goods are sent by a carrier, but not to be delivered until the buyer has paid the price (§ 88, below). As a general rule, a purchaser is entitled to see what he has bought, before paying the price.

"(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" (36). The goods may correspond with the sample, and yet have a latent defect which renders them

(34) Sales Act, sec. 16.

(35) See note 34.

(36) See note 34.

unmerchantable. In such case, the seller is liable upon an implied warranty. In Drummond v. Van Ingen (37) cloth was ordered by sample from the manufacturers, who knew that the buyers were to sell it again to tailors. The goods were like the sample, but had a defect such as to render them unmerchantable for the purpose for which goods of that class had been used. The same defect was in the sample, but was not discoverable by due diligence upon such inspection as is ordinarily made. There was here held to be an implied warranty that the goods should be fit for use in the manner such goods were ordinarily used. That the goods supplied were exactly what had been ordered was no defense.

(37) 12 App. Cas., 284.