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chases by patent or trade name or unless he has opportunity for inspection which should have disclosed the defect.

"Fitness for particular purpose" may mean same as "merchantability" discussed in the foregoing section. But it may mean more. If one buys goods they must, in the cases stated, be merchantable—which means usually that they must be reasonably fit for the purpose for which they were intended as goods of that kind. But the warranty may go further—that they are fit for the special purpose for which this buyer intends them. To make this the case, the seller must be acquainted with the use to which the buyer intends to put them and the contract must show that he undertook to furnish goods fit for that use. This warranty applies as against a manufacturer or dealer or any one else, if the circumstances show an undertaking by a seller to supply something that will be suitable for a particular purpose.

Knowledge of the use to which the goods are to be put may be obtained in either of two ways; (1) from the knowledge which the vendor has concerning the usual purpose to which such goods are put by purchasers thereof; (2) from the particular knowledge which the vendor has concerning the special purpose to which such goods are to be put by this particular purchaser. The warranty covering the first case might be called either a warranty of merchantability or of fitness for particular purpose; the warranty covering the second case is the true warranty of fitness for particular purpose.

Example 13. A Lumber Company desired a locomotive engine to do its work. It sent an order to a manufacturer of engines, setting forth with great particularity for what purpose the engine was wanted and the work it must do. The manufacturer provided an engine which was totally inadequate, as its use proved. The Court held that as an engine had been ordered from the seller which would do this particular work, the seller by filling the order had undertaken that it should do such work.40

As the basis of warranty is reliance upon the representations by the seller, there can be no warranty where the buyer exercises in that respect his own judgment. Thus if the article is seen and inspected by the buyer and the seller is not in a position to know more of the goods than the buyer has opportunity to know, then there cannot be an implied warranty of merchantability or fitness. The rule of caveat emptor applies. So, if the buyer in ordering goods describes a known and definite article, he cannot complain if he gets just what he ordered, for the seller has no choice but to furnish the particular thing that was ordered. By such known and definite description of the article, rather than description of the purpose for which he intends it, he precludes any judgment on the part of the seller and shows that he does not rely upon the seller's knowledge or skill to furnish him goods for a particular purpose, and in such a case there can be no further warranty of fitness than that it is fit for the purpose to which such goods are usually put by buyers thereof-not the particular purpose to which this buyer intends to put them.41 The same reasoning applies if goods are purchased in patent or trade name.42

Example 14. A orders of B a ventilating fan to ventilate a certain room and B agrees to furnish him such a fan. He must provide a fan fit for that purpose. But

40. Marbury Lumber Co. v. Stearns Mfg. Co., 32 Ky. L. R. 739. 41. Grand Ave. Hotel Co. v. Wharton, 79 Fed. 43. 42. Peoria v. Turney, 175 I11. 631.

if A had simply ordered a “No. 17 X-Fan" that being a patent name, or a name by which a known definite article was described B's only liability would be to furnish a good merchantable fan of that description, even though he should know A's purpose in buying the fan, for he would have no right under the contract to furnish anything else.

There may, in such cases, be a warranty of merchantability, that is, that they have no unusual defect, but not of fitness for special purpose, for if goods by such description are ordered, it cannot be a breach to furnish that which corresponds with the description.

If goods are ordered from a dealer of provisions for purposes of immediate consumption, there is an implied warranty that they are fit for such consumption: Thus, if one orders meat from a butcher, to use for his own and family's consumption, there is an implied warranty that it is not unwholesome and unfit for use. “It may

be said that the rule is a harsh one; but, as a general rule, in the sale of provisions, the vendor has so many more facilities for sale than are possessed by the purchaser, that it is much safer to hold the vendor liable than it would to compel the purchaser to assume the risk.” 43 In some states there is no such warranty.

Sec. 51. WARRANTIES DO NOT RUN WITH PERSONAL PROPERTY. A warranty by a seller to a buyer is a contract between the two which does not accrue to the benefit of a buyer from the buyer. A seller may, however, warrant to the consumer though the consumer buys through an intermediary.

In real estate law, warranties may “run with the land” so that a remote purchaser may sue. But sales of per

43. Wedeman v. Keller, 171 Ill. 93.

sonal property are not (ordinarily) a matter of record, and each seller and buyer make their own contract. A "subpurchaser" cannot sue upon a warranty.

Example 15. A, a manufacturer, sells to B, a dealer, warranting (either expressly or impliedly) that the goods are merchantable and that he has good title. B resells to C, a customer. C cannot sue A upon A's warranties to B. If, in such a case B were A's agent to sell and therefore A, through his agent B, sold to C, C could of course sue.

A manufacturer may contract direct with the consumer even though the goods are sold through an intermediary. That is the case where he addresses his offer of warranty to the consumer. Thus it is customary in the automobile trade for the manufacturer of parts (batteries, tires, etc.) to warrant the article to the consumer. This may be done by general trade announcements, or by propositions accompanied with the article at the time of sale.

A manufacturer may be responsible to a remote buyer on the ground of tort." See next section.

Sec. 52. RIGHT OF REMOTE PURCHASER TO SUE IN TORT. A remote purchaser of an article may sue the manufacturer or producer thereof for injuries sustained by him in cases in which such manufacturer or producer is guilty of fraud or has knowledge of the defect; in cases in which the article manufactured is inherently dangerous to life or limb and the manufacturer or producer is guilty of negligence in preparing the same; in cases in which the article manufactured is intended for human consumption and there is like negligence; but by the weight of authority the producer is not liable to a remote consumer with whom he has no contract in any other case than those above given even if he be guilty of negligence in the preparation or manufacture.

The situation we now consider is as follows: A, a manufacturer, sells to B, a dealer, who sells to C, a consumer. We have already considered C's rights against B (a mere dealer) in warranty; we have also seen that warranties do not extend to subpurchasers and therefore C cannot sue A in contract. The question now is may he sue him in tort? This question is of rather late development, but considerable litigation has lately arisen upon it. The law is not altogether settled, but we may attempt a summary as follows:

(a) Article manufactured not inherently dangerous, not meant for food, drink or medicine, manufacturer or producer guilty of mere negligence-manufacturer or producer not liable to remote purchaser in tort.

Example 16. S, a manufacturer of carriages, sold a carriage to R, a dealer, who resold to B. B while driving the carriage was injured by the breaking of a defective wheel. It was not shown that S had any knowledge of the defect. Held, manufacturer not liable unless such guilty knowledge were shown, a carriage not being a dangerous article.44

(b) Article manufactured not inherently dangerous, not meant for food, drink or medicine, manufacturer guilty of deceit-manufacturer liable to remote purchaser in tort.

Example 17. M manufactured a buggy which he sold to a city and it was used by W, a waterworks superin

44. Burkett v. Studebaker Bros. Mfg. Co., 126 Tenn. 467. See also a leading case in Caffrey v. Mossberg Mfg. Co., 23 Å. I. 381, 55 L. R. A. 822.

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