precludes the existence of any implied warranty, regardless of whether the defect is latent.93 In some cases, however, reliance is placed on the fact that inspection would reveal the defect.94 In the sale of drugs by a druggist to a customer, the Supreme Court of Texas has laid down the rule that opportunity of inspection or actual inspection does not make the doctrine of caveat emptor applicable, for in most cases it is obvious that inspection is useless and the druggist purports to have skill in regard to the nature of the goods he sells.95 The reasoning upon which this rule is based, however, would extend to sales of other things than drugs.

$989. Fitness for a particular purpose.

The warranty of merchantability is not the only warranty that may be implied on the sale of goods. Where the buyer buys goods for a particular purpose a warranty is sometimes implied that the goods shall be fit for that purpose. Here again a distinction must be taken between a bargain for goods by description (which will generally be an executory contract to buy and sell), and a bargain for specified goods (which will generally be an executed sale). If a seller contracts to furnish

93 Barnard v. Kellogg, 10 Wall. 383, 19 L. Ed. 987; Dorsey v. Watkins, 151 Fed. 340; Job v. Heidritter Lumber Co., 255 Fed. 311, 166 C. C. A. 481, Cal. Civil Code, § 1771; Browning v. McNear, 145 Cal. 272; Martin v. Roehn, 92 Ill. App. 87; Horwich v. Western Brewery Co., 95 Ill. App. 162; White v. Oakes, 88 Me. 367, 34 Atl. 175, 32 L. R. A. 592; Farrell v. Manhattan Market Co., 198 Mass. 271, 84 N. E. 481, 15 L. R. A. (N. S.) 884; Baker v. Kamantowsky, 188 Mich. 569, 155 N. W. 430; Ivans v. Laury, 67 N. J. L. 153, 50 Atl. 355; S. Dak. Comp. L., § 3635; McQuaid v. Ross, 85 Wis. 492, 55 N. W. 705, 22 L. R. A. 187, 39 Am. St. Rep. 864. This is also so stated in the first rule in Jones v. Just, L. R. 3 Q. B. 197, quoted supra, $228. But the statement was based on an early decision and probably did not accurately express the English law

when it was made. See the second rule and the end of the fifth rule, ibid. It certainly does not express the present law of England. See cases cited supra, n. 84.

94 In Badger v. Whitcomb, 66 Vt. 125, 28 Atl. 877, "the seller made no representation in respect to the boards sold. The defendants had an opportunity to inspect them, and were requested by the seller to inspect them, and by inspecting them they could have discovered the defect;" held that there was no implied warranty. National Cotton Oil Co. v. Young, 72 Ark. 144, 85 S. W. 92; Brooks v. Camak, 130 Ga. 213, 60 S. E. 456; Doyle v. Parish, 110 Mo. App. 470, 85 S. W. 646.

95 Jones v. George, 56 Tex. 149, 42 Am. Rep. 689, 61 Tex. 345, 48 Am. Rep. 280, a case involving the sale of paris green to kill cotton worms.

goods for a specified object it is often possible on a reasonable construction of the contract to hold that he has agreed to furnish something which will accomplish the object desired.9 On the other hand, if the bargain relates to specified goods, it is more obviously an implication of law apart from the contract between the parties if the seller is held to warrant the fitness of the article for the purpose designed. It should be noticed also that fitness for a particular purpose may be merely the equivalent of merchantability. Thus the particular purpose for which a reaping machine is generally designed is reaping. If it will not fulfill this purpose it is not merchantable. The particular purpose, however, may be narrower; a reaping machine may be desired for operation on rough ground and though it may be a good reaping machine it may yet be impossible to make it work satisfactorily in the place where the buyer wishes to use it. The principle already laid down that a manufacturer impliedly warrants his goods to be merchantable includes, therefore, a doctrine sometimes stated in this way-that the manufacturer of goods impliedly warrants that they are reasonably fit for the general purpose for which they are manufactured.97 Sometimes, however, a more extensive warranty exists by implication. The manufacturer is held to warrant not simply that the goods he sells are fit for the general purpose for which they are manufactured,

96 See Bobrick Chemical Co. v. Prest-O-Lite Co., 160 Cal. 209, 116 Pac. 747; John Qurl's Sons v. Williams &c. Co., 136 N. Y. App. Div. 710, 121 N. Y. S. 478.

97 Randall v. Newsom, 2 Q. B. D. 102 (C. A.); Union Iron Works v. Spottswood, 141 Fed. 834, 72 C. C. A. 300; The Nimrod, 141 Fed. 215; Troy Grocery Co. v. Potter, 139 Ala. 359, 36 S. W. 12; Bobrick Chemical Co. v. Prest-O-Lite Co., 160 Cal. 209, 116 Pac. 747; Murray Iron Works v. De Kalb Electric Co., 103 Ill. App. 78; Telluride Power Co. v. Crane, 103 Ill. App. 647, 208 Ill. 218, 70 N. E. 319; Parsons Co. v. Mallinger, 122 Iowa, 703, 98 N. W. 580; Redhead v. Wyoming Cattle Co., 126 Iowa,

410, 102 N. W. 144; Ideal Heating Co. v. Kramer, 127 Iowa, 137, 102 N. W. 840; American Radiator Co. v. McKee, 140 Ky. 105, 130 S. W. 977; Queen City Glass Co. v. Pittsburg Clay Pot Co., 97 Md. 429, 55 Atl. 447; St. Louis Brewing Assoc. v. McEnroe, 80 Mo. App. 429; Moore v. Koger, 113 Mo. App. 423, 87 S. W. 602; Rogers v. Beckrich, 61 N. Y. S. 725, 46 N. Y. App. Div. 429; Southern Iron Co. v. Exeter Machine Works, 109 Tenn. 67, 70 S. W. 614. But see Rollins Engine Co. v. Eastern Forge Co., 73 N. H. 92, 59 Atl. 382, 68 L. R. A. 441; Totten v. Stevenson, 29 S. Dak. 71, 135 N. W. 715; Kelsey v. J. W. Ringrose Net Co., 152 Wis. 499, 140 N. W. 66.

but also are fit for some special purpose of the buyer's which will not be satisfied by mere fitness for the general purpose goods of that sort fulfill. The test here, as elsewhere, is whether the buyer justifiably relied upon the seller's judgment or whether relying on his own he ordered or bought what is frequently called "a known, described, and definite article." In the cases cited below it was held that the manufacturer was liable as a warrantor of fitness for a special purpose though it did not appear that the goods sold were not fit for some purposes for which goods of the sort are naturally adapted.98 Even though inspection would not reveal the defect in the

goods it is possible for the buyer to select them, relying upon his own judgment, and if he does this the seller, at least, in the absence of guilty knowledge," will not be liable on an implied warranty.1 Inspection by the buyer is always a fact of importance in considering whether in fact he exercised his own judgment or relied on that of the seller. If the seller is not informed of the buyer's purpose, this also shows that there can be no warranty of fitness for that purpose.2

§ 990. Known, described and definite articles.

3

If the buyer either enters into an executory contract for the purchase of goods exactly described, or makes an executed purchase of such goods, while he may be able to assert an obligation on the part of the seller to furnish merchantable goods of that description, unless the description itself precludes merchantability, he cannot regard the seller, even though the seller be the manufacturer of the goods, as warranting that they are fit for any more special purpose than that which merchantable goods of the agreed description necessarily fulfill. By exactly defining what he wants the buyer has exercised his own judgment, instead of relying

99 Negligence would also render the seller liable in an action on the case if the defect were a dangerous one.

1 Farrell v. Manhattan Market Co., 198 Mass. 271, 84 N. E. 481, 15 L. R. A. (N. S.) 884, 126 Am. St. Rep. 436. See also Wallis v. Russell, [1902] 2 Ir. 585 (C. A.); Logeman Bros. Co. v. R. J. Preuss Co., 131 Wis. 122, 111 N. W. 64. The Sale of Goods Act has, perhaps, changed the law in England to some extent in this respect. In Wallis v. Russell the opinion was expressed that before the statute there was at least a presumption that a buyer who inspected the goods, bought on his own judgment, whereas under the statute the question is an open question of fact in every case. provisions of the American Sales Act are not distinguishable from those of the English act.

The

2 Mark v. H. D. Williams Cooperage Co., 204 Mo. 242, 103 S. W. 20. It is also true that mere knowledge on the part of the seller that the buyer intends to make a particular use of the goods is not sufficient to establish a warranty that the goods are adapted to such use. Middletown Mach. Co. v. Chaffin, 108 Ark. 254, 157 S. W. 398; Jones & Laughlin Steel Co. v. Abner Doble Co., 162 Cal. 497, 123 Pac. 290; West End Mfg. Co. v. P. R. Warren Co., 198 Mass. 320, 84 N. E. 488; W. R. Colchord Mach. Co. v. LoyWilson Foundry Co., 131 Mo. App. 540, 110 S. W. 630.

3 Flaherty v. Maine Motor Carriage Co., 117 Me. 376, 104 Atl. 627, 628. That there is at least this obligation is sometimes overlooked. Perhaps it was in Ivans v. Laury, 67 N. J. L. 153, 50 Atl. 355.

upon that of the seller. It is often difficult to determine when the seller's judgment is justifiably relied upon and when the description is so definite as to preclude that supposition. Extreme cases may be put on one side and the other which are easily decided, but the question finally resolves itself into one of degree. The line drawn by the courts can best be gauged by examination of the facts of recent leading cases. 4a Atl. 382, 68 L. R. A. 441; Ivans v. Laury, 67 N. J. L. 153, 155, 50 Atl. 355; Stanford v. National Drill Mfg. Co., 28 Okl. 441, 114 Pac. 734; Albree v. Philadelphia Co., 201 Pa. St. 165, 50 Atl. 984; American Bank Co. v. Guardian Trust Co., 210 Pa. St. 320, 59 Atl. 1108; John A. Roebling's Sons Co. v. American Amusement Co., 231 Pa. 261, 80 Atl. 647; Beggs v. James Hanley Co., 27 R. I. 385, 62 Atl. 373, 114 Am. St. Rep. 44; Milwaukee Boiler Co. v. Duncan, 87 Wis. 120, 58 N. W. 232, 41 Am. St. Rep. 33; Case Plow Works v. Niles, 90 Wis. 590, 63 N. W. 1013; H. McCormick Lumber Co. v. Winans, 126 Wis. 649, 105 N. W. 945; La Crosse Plow Co. v. Brooks, 142 Wis. 640, 126 N. W. 3.

4 Jones v. Just, L. R. 3 Q. B. 197; Olevant v. Bayley, 5 Q. B. 288; Chanter v. Hopkins, 4 M. & W. 399; Seitz v. Brewers' Refrigerator Co., 141 U. S. 510, 12 S. Ct. 46, 35 L. Ed. 837; Pullman Car Co. v. Metropolitan Ry., 157 U. S. 94, 15 S. Ct. 503, 39 L. Ed. 632; Grand Ave. Hotel Co. v. Wharton, 79 Fed. 43, 49 U. S. App. 108, 24 C. C. A. 441; Frederick Mfg. Co. v. Devlin, 127 Fed. 71, 62 C. C. A. 53; Davis Calyx Drill Co. v. Mallory, 137 Fed. 332, 69 L. R. A. 973, 69 C. C. A. 662; Bær Grocer Co. v. Barber Milling Co., 223 Fed. 969, 139 C. C. A. 449; People ex rel. Oil Creek Gold Mining Co. v. The Court of Appeals, 32 Colo. App. 355 74 Pac. 543; Peoria Grape Sugar, Co. v. Turney, 175 Ill. 631, 51 N. E. 587; Fuchs & Lang Mfg. Co. v. Kittredge, 242 Ill. 88, 89 N. E. 723; Ehrsam v. Brown, 76 Kans. 206, 91 Pac. 179, 15 L. R. A. (N. S.) 877; Lombard Water Wheel Co. v. Great Northern Paper Co., 101 Me. 114, 63 Atl. 555, 6 L. R. A. (N. S.) 180; City, etc., Ry. v. Basshor, 82 Md. 397, 33 Atl. 635; Day v. Mapes-Reeve Co., 174 Mass. 412, 54 N. E. 878; Franklin Mfg. Co. v. Lamson Mfg. Co., 189 Mass. 344, 75 N. E. 624; Gill v. National Gaslight Co., 172 Mich. 295, 137 N. W. 690; Cosgrove v. Bennett, 32 Minn. 371, 30 N. W. 359; Gregg v. Page Belting Co., 69 N. H. 247, 46 Atl. 26; Fairbanks v. Baskett, 98 Mo. App. 53, 71 S. W. 1113; F. H. Gilcrest Lumber Co. v. Wilson, 84 Neb. 583, 121 N. W. 989; Rollins Engine Co. v. Eastern Forge Co., 73 N. H. 92, 59

4aIn Grand Ave. Hotel Co. v. Wharton, 79 Fed. 43, 49 U. S. App. 180, 24 C. C. A. 441, the seller agreed to furnish "2 Harrison safety boilers of 150 horse power each and the services of an erector to set the same." Contract contained minute specifications of the material and construction of the boilers in all their parts. The sellers knew that the boilers were for use in a hotel in Kansas City, and that the only supply of water available there was from the Missouri river. The boilers could not be used satisfactorily with water from the Missouri river owing to the amount of mud in that water. It was held that there was no implied warranty protecting the buyer in this respect. The buyer got the exact thing he bargained for. Holt v. Sims, 94 Minn. 157, 102 N. W. 386, the seller was to install in the

In