§ 991. The seller's obligation is not based on negligence. The effect of an express warranty undoubtedly is to bind the seller absolutely for the existence of the warranted qualities. If an implied warranty is properly called a warranty, the buyer's dwelling-house "A No. 3 St. Paul boiler with rated capacity of 320 feet" and also "to supply for a bank building of the buyer a heating plant, using for that purpose an old boiler then in the building and furnishing all necessary piping and fitting and labor to complete the job." It was held that no warranty could be implied that the house or bank building would be adequately heated. In Ideal Heating Co. v. Kramer, 127 Iowa, 137, 102 N. W. 840, there was held to be an implied warranty of fitness for the contemplated use when heating apparatus was installed. In this case, however, the description was less definite than in the Minnesota case, and, therefore, the seller's judgment was at least to some extent relied upon. See also J. A. Fay & Eagan Co. v. Dudley, 129 Ga. 314, 58 S. E. 826. In Tilton Safe Co. v. Tisdale, 48 Vt. 83, the buyer gave the written order for "A No. 4 safe with combination lock." Such a safe was furnished but the buyer asserted that the lock could not be used. The court charged the jury that there was no implied warranty that a person of ordinary skill and capacity could operate the lock; that it was the duty of the plaintiffs, upon the receipt and acceptance of defendant's order, to ship, in accordance with such order, one of their No. 4 safes with combination lock that would be merchantable both as respected the lock and the safe. The buyer excepted to this charge and in overruling the exception the court in banc said: "The plaintiffs shipped a No. 4 safe with combination lock of their make to the defendant. This was so far a strict compliance with the defendant's order. It was the very thing the terms of the order called for. There was no implied warranty as to the merit or usableness of the lock, but only that it should be answerable to the call of the order." This language is often quoted but it certainly is incorrect without qualification. It is submitted that the seller was bound not only to furnish a lock answering the description but a lock reasonably fit for its purpose if any combination locks are. The instruction of the trial court in that it required the lock to be merchantable (and it would not be merchantable if it was not fit for the purpose of locking the safe) is not open to the same objection. See Crankshaw v. Schweizer Mfg. Co., 1 Ga. App. 363, 58 S. E. 222. In Bristol Tramways, etc., Co. Lim., v. Fiat Motors, Lim., [1910] 2 K. B. 831 (C. A.) the plaintiff ordered by letter "the 24/40 h. p. Fiat Omnibus which we inspected" and also "six 24/40 h. p. Fiat Omnibus Chassis." It was held that the proviso at the end of Sec. 14, subsec. 1, of the Sale of Goods Act [Sec. 14 (4) of Am. Act], did not protect the defendant, Cozens-Hardy, M. R., saying (p. 837): "Fiat Omnibus was not a trade name. It no doubt meant an article sold by the defendants, an English company, and manufactured by an Italian company, having intimate business relations with the English company, but the whole design and structure and arrangement of the Fiat omnibus was a matter of uncertainty according as the makers might from time to time consider improvements to be desirable." consequences should be similar. It should make no difference, therefore, whether the seller was guilty of any fault in the matter. Such is the well-settled law of England.5 Some jurisdictions in the United States seem to follow the same rule." In New York, however, an elaborate decision limits the liability of a manufacturer to cases where the process of manufacture is improper or carelessly carried on, or where improper material is negligently or knowingly used. The rule laid 198 Mass. 271, 84 N. E. 481, 487, 15 L. R. A. (N. S.) 884, 126 Am. St. Rep. 436, the court said: "If the selection is left to the dealer due care by him is no defense." See also Tennessee River, etc., Co. v. Leeds, 97 Tenn. 574, 37 S. W. 389. So in many cases where the question is not discussed, but the seller is held liable as a warrantor, the decision in failing to say that negligence has been established necessarily holds it immaterial. In Randall v. Newson, 2 Q. B. D. 102, the plaintiff bought from the defendant, a carriage manufacturer, a carriage pole which was made of defective wood. Owing to the defect the pole broke and the buyer's horses were badly injured. It was held that the seller was liable for the damage to the horses even though the defect in the pole was latent and could not have been guarded against by reasonable skill or care on the part of the seller. In Frost v. Aylesbury Dairy Co., [1905] 1 K. B. 608 (C. C. A.), the defendant sold the plaintiff milk containing typhoid germs. The plaintiff's wife contracted typhoid fever and died. It was held that the defendant was liable for the expenses of her illness and other damages, although he was ignorant of the defect and apparently not negligent in allowing its existence, which could only have been discovered by prolonged investigation. In Rodgers v. Niles, 11 Ohio St. 48, 56, 78 Am. Dec. 290, the court said: "If the sellers have failed through defect of material procured by themselves, or of workmanship, their contract is broken, whether such defect be latent or visible, and however honest their intention may have been." The same rule seems adopted in Leopold v. Van Kirk, 27 Wis. 152. Section 2651 of the Code of Georgia, and section 1771 of the Civil Code of California, also seem to impose an absolute liability upon the seller irrespective of any fault on his part. So in Farrell v. Manhattan Market Co., 7 Hoe v. Sanborn, 21 N. Y. 552, 78 Am. Dec. 163. To an action for the price of saws manufactured by the plaintiff, the defendant set up a breach of implied warranty. The court held that the basis of implied warranties was presumed knowledge of the defect and that while the seller must be presumed to know of defects caused by the manufacturer, he could not be disposed to know of latent defects in the material bought for manufacture. So in Carleton v. Lombard, 149 N. Y. 137, 153, where the seller contracted to deliver petroleum, the court said: "The defendant was bound to deliver an article of refined petroleum that was free from latent or hidden defects that rendered it unmerchantable at the time and place of delivery, and that could have been guarded against in the process of refinement or in the selection of the raw material by reasonable care and skill." To the same effect is Howard Iron Works v. Buffalo Elevating Co., 113 N. Y. App. Div. 562, 99 N. Y. S. 163. down by the New York court has been followed in some other jurisdictions. Logically it seems difficult to find any intermediate ground between basing the seller's liability either wholly on negligence or on an obligation imposed by the law entirely irrespective of negligence, an obligation analogous to that created by an express warranty. If a manufacturer is not liable for the use of defective material, in the absence of negligence it is hard to see why any seller should be liable for selling unmerchantable goods in the absence of negligence. And indeed, the New Hampshire court seems to have gone to the full extent of resting the liability of the seller altogether upon negligence. An alternative, the rule in force in the civil McKinnon Mfg. Co. v. Alpena Fish Co., 102 Mich. 221, 60 N. W. 472; Wisconsin Brick Co. v. Hood, 67 Minn. 329, 69 N. W. 1091, 64 Am. St. Rep. 418; Bragg v. Morrill, 49 Vt. 45, 24 Am. Rep. 102. In Kellogg Bridge Co. v. Hamilton, 110 U. S. 108, 3 S. Ct. 537, 28 L. Ed. 86, also, the court, in stating the rule of liability of the seller, inserted a qualification similar to that laid down in Hoe v. Sanborn, though it was not necessary for the decision of the case and no discussion of the matter occurs 66 in the opinion. 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." See also Archdale v. Moore, 19 Ill. 565, and cases concerning food, infra, § 996. 'In Rollins Engine Co. v. Eastern Forge Co., 73 N. H. 92, 59 Atl. 382, 68 L. R. A. 441. "The obligation implied 'from natural reason and the just construction of law' [3 Bl. Com. 162], of one who undertakes to perform service for another, is due care. He contracts to exercise the diligence and skill of the average man of the ability which he professes in like work. If he exercises such care, he is not liable, in the absence of express contract, merely because the expected result is not obtained; Leighton v. Sargent, 27 N. H. 460, 59 Am. Dec. 388; Spead v. Tomlinson, 73 N. H. 46, 59 Atl. 376, 68 L. R. A. 432. If the plaintiffs had taken to the defendants a steel billet, to be forged by them into a particular shape for a piston rod, the defendants' contract would have been to exercise the care and skill of average persons engaged in like work. Similarly, if the plaintiffs had employed the defendants to select for them a billet of steel suitable for such forging, the defendants would not be understood to warrant the correctness of their judgment merely because they undertook the commission. For failure to detect a defect which could not be found by ordinary care in the exercise of the skill they had or professed to have, they would not be liable. The fact that the plaintiffs by one order employed the defendants to select the steel and forge it into a specified shape for a certain use does not make the measure of their liability different from what it would have been under the separate contracts suggested. The law, though intrinsically meritorious, is so opposed to all common-law authorities that it can hardly be regarded as a possibility.10 The English rule may seem somewhat harsh at first sight, but on grounds of policy it is probably superior to any modification of it based upon negligence. If the buyer is compelled to contest the question of negligence with the seller he will find it very difficult to recover. In the nature of the case the evidence will be chiefly in the control of the seller, and the expense of even endeavoring to make out a case of this sort will be prohibitive in cases involving small amounts. Moreover, if the buyer cannot recover from the seller he cannot recover from any one for the defective character of the goods which he has bought. The wrong done by the sale of defective materials to the manufacturer who later sold the goods cannot form the basis of action by the ultimate buyer. Consequently, the real wrongdoer who has caused the ultimate injury escapes. On the other hand, if the manufacturer is held to an absolute liability irrespective of negligence, it will unquestionably increase the degree of care which he will use and if in any case he is compelled to pay damages for breach of warranty where the real cause of the defect was defective material which he himself innocently purchased, he will have a remedy over against the person who sold him this defective material, and his damages will defendants' evidence that the defect 11 in the steel was undiscoverable by ordinary care tends to establish the possibility of an undiscoverable, inherent defect in the material of which the plaintiffs stipulated the rod should be forged. Having relied upon their own judgment as to the material to be used in the manufacture, or desiring an article necessarily made of such material, they cannot hold the defendants responsible for a defect which the skill and care which the defendants professed to possess, and which they were bound to exercise, could not discover. Ordinary care is such care as persons of average prudence exercise under like circumstances. Nashua Iron & Steel Co. v. Railroad, 62 N. H. 159, 161. The defendants knew the forging was to be used for a piston rod for a steam engine. Merely purchasing the steel from a reputable manufacturer may not be Idue care in the selection of the material for such a purpose. It may be, and the evidence which the defendants offered indicates, that there are tests which can be applied to determine the character of steel. Whether the defendants did all that due care required was for the jury, and the question should have been submitted to them, as requested by the defendants." 10 For the rule in the Civil law, see infra, § 999. 11 See infra, § 998. include whatever he himself has had to pay for breach of warranty.12 Thus the loss will be borne ultimately by the person who should be responsible. § 992. Subsidiary warranties by manufacturer. Even though the goods supplied by a manufacturer have been so exactly defined as to preclude the existence of any warranty of fitness for the purpose for which they are desired, and probably even though because of inspection or the language of the bargain there is no warranty of fitness for any purpose or of merchantability, there is nevertheless a warranty that the manufacture of the goods shall have been properly done and that the material used shall have been reasonably proper, except in so far as the obvious character of the defects or the terms of the bargain show a different intent, or unless the rule in regard to inspection precludes a warranty.13 It has also been held that a manufacturer selling goods of the sort which he manufactures warrants that the goods were manufactured by him,14 and are new. 15 § 993. Exclusion of implied warranty. Though the goods which form the subject of the bargain may be so described or identified as to preclude any implication of a warranty of fitness for a particular purpose, nevertheless, there may be, under the principles already considered, a warranty that the goods are merchantable unless goods of the sort agreed upon necessarily cannot be. 16 It must be, however, possible to sell unmerchantable goods even if the seller is a dealer or manufacturer, and though the buyer either does not inspect the goods or his inspection in the 12 See infra, § 997. 13 Archdale v. Moore, 19 Ill. 565; Kohl v. Lindley, 39 Ill. 195, 89 Am. Dec. 294; Union Hide & L. Co. v. Reissig, 48 Ill. 75; Ricketts v. Sisson, 9 Dana, 358, 35 Am. Dec. 141; Little v. Van Syckle, 115 Mich. 480, 73 N. W. 554; Cosgrove v. Bennett, 32 Minn. 371, 20 N. W. 359; Goulds v. Brophy, 42 Minn. 109, 43 N. W. 834, 6 L. R. A. 392; Waring v. Mason, 18 Wend. 425; Pease v. Sabin, 38 Vt. 432, 91 Am. Dec. 364. 14 Johnson v. Raylton, 7 Q. B. D. 438. 15 Grieb v. Cole, 60 Mich. 397, 27 N. W. 579, 1 Am. St. Rep. 533. 16 There was held to be no warranty that "May eggs" sold in December were fresh. J. D. Best Mercantile Co. v. Brewer, 50 Cal. 455, 115 Pac. 726. See supra §§ 984 et seq. |