for inspection there is no warranty implied as to defects which would have been obvious upon inspection.79 Special circumstances may indicate in particular cases that the risk either wholly or in part, as to the quality of the goods, is assumed by the buyer.80 When goods are sold at second-hand, for instance, even by a manufacturer, it cannot be supposed that a warranty is implied of the same sort that would be implied had the goods been new.81 But though in such a 79 Kellogg Bridge Co. v. Hamilton, 110 U. S. 108, 28 L. Ed. 86; National Cotton Oil Co. v. Young, 74 Ark. 144, 85 S. W. 92; Glasgow Milling Co. v. Burgher, 122 Mo. App. 14, 97 S. W. 950; Hoe v. Sanborn, 21 N. Y. 552, 78 Am. Dec. 163; Hooven & Allison Co. v. Wirtz, 15 N. Dak. 477, 107 N. W. 1078. In Kellogg Bridge Co. v. Hamilton, 110 U. S. 108, 28 L. Ed. 86, 3 Sup. Ct. Rep. 537, the court said: "The authorities to which we have referred, although differing in the form of stating the qualifications and limitations of the general rule, yet indicate with reasonable certainty the substantial grounds upon which the doctrine of implied warranty has been made to rest. According to the principles of decided cases, and upon clear grounds of justice, the fundamental inquiry must always be whether, under the circumstances of the particular case, the buyer had the right to rely and necessarily relied on the judgment of the seller, and not upon his own. In ordinary sales the buyer has an opportunity of inspecting the article sold; and the seller not being the maker, and, therefore, having no special or technical knowledge of the mode in which it was made, the parties stand upon grounds of substantial equality. If there be, in fact, in the particular case any inequality, it is such that the law cannot or ought not to attempt to provide against; consequently, the buyer in such cases-the seller giving This no express warranty and making no representations tending to misleadis holden to have purchased entirely on his own judgment. But when the seller is the maker or manufacturer of the thing sold, the fair presumption is that he understood the process of its manufacture, and was cognizant of any latent defect caused by such process, and against which reasonable diligence might have guarded. presumption is justified, in part, by the fact that the manufacturer or maker by his occupation holds himself out as competent to make articles reasonably adapted to the purposes for which such or similar articles are designed. When, therefore, the buyer has no opportunity to inspect the article, or when, from the situation, inspection is impracticable or useless, it is unreasonable to suppose that he bought on his own judgment, or that he did not rely on the judgment of the seller as to latent defects of which the latter, if he used due care, must have been informed during the process of manufacture. If the buyer relied, and under the circumstances had reason to rely, on the judgment of the seller, who was the manufacturer or maker of the article, the law implies a warranty that it is reasonably fit for the use for which it was designed, the seller at the time being informed of the purpose to devote it to that use." 80 Thielman v. Reinsch, 103 Ark. 307, 146 S. W. 525. 81 In Morley v. Consolidated Mfg. sale it could not be implied that the goods were warranted equal in quality to new goods, it seems that there is a warranty that they were originally merchantable, and if the buyer relies on the seller's judgment, a warranty that they are still reasonably fit for the purpose for which they are intended should be implied.82 Where a manufacturer sells goods which are a waste product, as such, it will generally be true, that the buyer assumes the risk of the quality and value of the goods. But if a manufacturer sells a by-product of his manufacture not as such, but simply as one of the things he Co., 196 Mass. 257, 81 N. E. 993, the plaintiff bought a second-hand automobile from an agent of the manufacturer. After two months' use the crank shaft broke and damaged the engine materially. The court held there was no implied warranty covering this damage, saying: "We are also of opinion that there was no implied warranty as to the length of time this crank shaft would stand the strain of use. The subject of sale was an automobile. Even if it be assumed that the plaintiff had the right to think the sale was made by the manufacturer, still the machine was not made specially for the plaintiff, but on the contrary was one which had been considerably used and was bought by him at what he knew was a sum below the usual price for a new machine of the same kind. If it be said that he had the right to suppose it was fit to run, the answer is that it was fit to run. Every part essential to the running of the machine was there at the time of the purchase-in other words the machine was an automobile in running order, and, after the purchase, was actually used by the plaintiff nearly, if not quite, two months before the shaft broke. If the shaft had been stronger it might have lasted for a longer time. There is no claim of fraud. Under these circumstances we think that there was no implied warranty as to the length of time the shaft would last, but that as to that the doctrine of caveat emptor is applicable. See Wilson v. Lawrence, 139 Mass. 318, 1 N. E. 278." See also Marmet Coal Co. v. People's Coal Co., 226 Fed. 646, 141 C. C. A. 402; Yellow Jacket Min. Co. v. Tegarden, 104 Ark. 573, 149 S. W. 518; Bayer v. Winton Motor Car Co., 194 Mich. 222, 160 N. W. 642; W. R. Colchord Mach. Co. v. Loy-Wilson Foundry Co., 131 Mo. App. 540, 110 S. W. 630. But representations of the seller which are an inducement to the sale will amount to an express warranty, though the goods are second-hand. Walker, Evans & Cogswell Co. v. Ayer, 80 S. C. 292, 61 S. E. 557; Fairbank's Steam Shovel Co. v. Holt, 79 Wash. 361, 140 Pac. 394, L. R. A. 1915, B. 477. 82 See Fairbanks Steam Shovel Co. v. Holt, 79 Wash. 361, 140 Pac. 394. 83 Turner v. Mucklow, 8 Jur. N. S. 870, 6 L. T. (N. S.) 690 (the seller sold "spent madder," the refuse product of his manufacture, and sold as such. It was held the buyer took the risk of its utility for producing garrancine); Listman Mill Co. v. Miller, 131 Wis. 393, 111 N. W. 496 (a flouring mill sold "280 tons No. 2 screenings more or less," its output for a specified period. There was held to be no warranty implied that the screenings in future would be of the same quality as those produced at the time the contract was made). manufactures, it would seem immaterial that the production of such goods was not the main purpose of his business. § 987. The seller a dealer. According to the English law (and also under the American Sales Act) the seller impliedly warrants the merchantable character of the goods which he sells as fully when he is merely a dealer in goods of that description as when he is a manufacturer.84 In the United States some jurisdictions adopt the English law and hold that the dealer may be liable upon an implied warranty in sales of specified goods, 85 but the majority of American decisions have held no such warranty as exists where a manufacturer is the seller is imposed upon a seller who is a dealer. 84 Jones v. Just, L. R. 3 Q. B. 197; Preist v. Last, [1903] 2 K. B. 148 (C. A.); Bristol Tramways Co. v. Fiat Motors, [1910] 2 K. B. 831; Wallis v. Russell, [1902] 2 Ir. 585. The three cases last cited were decided under the Sale of Goods Act, but the statute adopted in this particular the rule previously existing. A sale by a manufacturer or dealer of goods which he does not habitually sell contains no implied warranty. 85 Dushane v. Benedict, 120 U. S. 630, 636, 7 S. Ct. 696, 30 L. Ed. 810; Oil Well Supply Co. v. Priddy (Ind. App.), 83 N. E. 623; Campion v. Marston, 99 Me. 410, 59 Atl. 548; Murchie v. Cornell, 155 Mass. 60, 29 N. E. 207, 14 L. R. A. 492, 31 Am. St. Rep. 526; Farrell v. Manhattan Market Co., 198 Mass. 271, 281, 84 N. E. 481, 15 L. R. A. (N. S.) 884, 126 Am. St. Rep. 436; Skinner v. Kerwin Glass Co., 103 Mo. App. 650, 77 S. W. 1011; Atkins Bros. Co. v. Southern Grain Co., 119 Mo. App. 119, 95 S. W. 949; Toledo Computing Scale Co. v. Frederickson, 95 Neb. 689, 146 N. W. 957. The Georgia Civil Code, § 365, provides: "If there is no express covenant of warranty, the purchaser must exercise caution in detecting The same qualification noticed defects; the seller, however, in all cases (unless expressly or from the nature of the transaction excepted) warrants: 1. That he has a valid title and right to sell. 2. That the article is merchantable, and reasonably suited to the use intended. 3. That he knows of no latent defects undisclosed." It will be observed that the obligation of implied warranty is not even limited to dealers. On the construction of this provision, see Elgin Jewelry Co. v. Estes, 122 Ga. 807, 50 S. E. 939; Wells v. Gress, 118 Ga. 566, 45 S. E. 418. California Civil Code, § 1771, enacts that there is an implied warranty where merchandise is sold which is inaccessible to the buyer's examination. See Moore v. McKinlay, 5 Cal. 471. A similar provision is contained in S. Dak. Comp. L., § 3635. See Standard Rope Co. v. Olmem, 13 S. Dak. 296, 83 N. W. 271. And in South Carolina, in the absence of circumstances, showing a contrary agreement any seller of personal property impliedly warrants it of value for the purpose to which such goods are ordinarily applied. Walker, Evans & Cogswel. Co. v. Ayer, 80 S. C. 292, 61 S. E. 557. 86 Reynolds v. General Electric Co., 141 Fed. 551, 73 C. C. A. 23; in the preceding section in regard to manufacturers must also apply to sales by dealers; that is, such jurisdictions as allow an implied warranty in any case in a sale by a dealer must restrict it to cases where the goods are not accessible to inspection, if examination would disclose the defect. If the seller of specific goods is neither a manufacturer nor a dealer, generally no warranty of specific goods would be implied, but if the skill or judgment of the seller were evidently relied on, there seems no reason why the nature of the seller's occupation should make a difference, and the Sales Act has adopted this idea.88 § 988. Inspection. It is rightly held that in any case where the buyer has an opportunity to inspect goods, there should be no warranty implied as to defects which the examination ought to disclose, McCaa v. Elam Drug Co., 114 Ala. 74, 21 So. 479, 62 Am. St. Rep. 88; Chicago Provision Co. v. Tilton, 87 Ill. 547; Borden & Selleck Co. v. Fraser, 118 Ill. App. 655; Ehrsam v. Brown, 76 Kans. 206, 91 Pac. 179; White v. Oakes, 88 Me. 367, 34 Atl. 175, 32 L. R. A. 592; Trafton v. Davis, 110 Me. 318, 86 Atl. 179; Flaherty v. Maine Motor Carriage Co. 117 Me. 376, 104 Atl. 627; Kernan v. Crook, 100 Md. 210, 59 Atl. 753; Howard Iron Works v. Buffalo Elevating Co., 113 N. Y. App. Div. 562, 99 N. Y. S. 163, affd., without opinion, 188 N. Y. 619, 81 N. E. 1166; Pascal v. Goldstein, 100 N. Y. S. 1025; Strauss v. Salzer, 109 N. Y. S. 734; Coleman v. Simpson, 158 N. Y. App. D. 461, 143 N. Y. S. 587; Hooven & Allison Co. v. Wirtz, 15 N. Dak. 477, 107 N. W. 1078, citing N. Dak. Revised Codes (1899), §§ 3976, 3978. See also Hight v. Bacon, 126 Mass. 10, 30 Am. Rep. 639. 87 See statutes cited supra, n. 85, of Califormia and Georgia; Carleton v. Jenks, 80 Fed. 937, 47 U. S. App. 734, 26 C. C. A. 265. See also Farrell v. Manhattan Market Co., 198 Mass. 271, 84 N. E. 481, 15 L. R. A. (N. S.) 884, 126 Am. St. Rep. 436. 88 Section 15 (1). Wing v. Chapman, 49 Vt. 33, was an action on the case for the false warranty of a yoke of oxen. After discussing the subject of the express warranty, the court said: "Even without any express warranty in this class of contracts, the law has now become pretty well settled, that where the special purpose of the buyer is made known to the seller, and the seller, with such knowledge, delivers the goods, the law implies that they are reasonably fit for the purpose specified. If the facts show that the buyer trusts to the judgment of the seller, the seller must see to it that he judges correctly. 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." See also Gage v. Carpenter, 107 Fed. 886, 47 C. C. A. 39. for the basis of implied warranty is the justifiable reliance of the buyer upon the seller's judgment. In case of latent defects, however, there is no reason why the buyer's right of inspection should limit the implication of a warranty in regard to such defects. He may naturally and justifiably trust to the seller as to such matters if the seller has superior knowledge. Accordingly under the English law, opportunity of inspection and actual inspection will not necessarily preclude the buyer from asserting a warranty in regard to latent defects. In the United States, as has already been seen, where there is a contract to sell goods by description, there is an implied warranty that the goods shall be merchantable.90 This warranty everywhere survives the inspection and acceptance of the goods where the defect is latent, and in some jurisdictions, or under some circumstances, even though the defect is obvious.91 It is enough here to call attention to the fact that inspection is not held anywhere necessarily to destroy a promise or warranty created by a bargain previously made. But where inspection is had or may be had at the time the bargain itself is made, the tendency in the United States seems to be to hold that at least, in the absence of guilty knowledge on the part of the seller,92 the inspection 89 Jones v. Bright, 5 Bing. 533; Preist v. Last, [1903] 2 K. B. 148 (C. A.); Bristol Tramway &c. Co. v. Fiat Motors, [191] 2 K. B. 831; Wallis v. Russell, [1902] 2 Ir. 585 (C. A.). The same question is involved in sales by sample where the sample contains a latent defect. It is well settled in England that the buyer is entitled not simply to goods conforming to the sample, but also to goods free from latent defects in the sample. In Mody v. Gregson, L. R. 4 Ex. 49, 53, Willes, J., said: "The object and use of either inspection of bulk or sample alike are to give information, disclosing directly through the senses what any amount of circumlocution might fail to express." This was quoted with approval and followed in Drummond v. Van Ingen, 12 A. C. 284. See also Heilbutt v. Hickson, L. R. 7 C. P. 438; Ungerer 91 See supra, §§ 700 et seq. 92 In such a case a warranty may be implied. Puls v. Hornbeck, 24 Okla. 288, 103 Pac. 665, 29 L. R. A. (N. S.) 202; Gerkin v. Brown & Sehler Co., 177 Mich. 45, 143 N. W. 48, 48 L. R. A. (N. S.) 224; Nichthauser v. Friedman, 161 N. Y. S. 199, or where the seller's conduct induces the buyer not to make careful examination. Procter v. Atlantic Fish Co., 208 Mass. 351, 94 N. E. 281, commented on in 10 Mich. L. Rev. 73. |