an emery wheel manufactured by defendant, and bought by plaintiff's employer of a dealer to whom it had been sold by the defendant.

Point Involved: Whether the liability for selling a defective article extends to other persons than the immediate purchaser.

BRAILEY, J.: "The manufacturer of an article of merchandise which he puts upon the market ordinarily is not responsible in damages to those who may receive injuries caused by its defective construction, but to whom he sustains no contractual relations, although by the exercise of reasonable diligence he should have known of the defect. If such an extended liability attached where no privity of contract exists it would include all persons however remote who had been damaged either in person or property by his carelessness, and manufacturers as a class would be exposed to such far reaching consequences as to seriously embarrass the general prosecution of mercantile business. In the usual course of trade upon making a sale, as the article passes from the ownership and control of the maker, it is held that when these cease his liability also should be considered as ended. Davidson v. Nichols, 11 Allen, 514; Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 48; Glynn v. Central Railroad, 175 Mass. 510, 512. But where by reason of its nature the article sold is commonly recognized as intrinsically dangerous to life or property, among which gunpowder, nitroglycerine and other highly explosive compounds, naphtha and poisonous drugs are some familiar examples, if the seller without notice of their dangerous or noxious qualities delivers them to a customer or to a carrier who is ignorant of these properties, he is liable not only to him, but to others to whom while in the exercise of reasonable care they are the proximate cause of injury. Davidson v. Nichols, 11 Allen, 514; Carter v. Towne, 98 Mass. 567; Wellington v. Downer Kerosene Oil Co., 104 Mass. 64; Norton v. Sewall, 106 Mass. 143; Boston & Albany Railroad v. Shanly, 107 Mass. 568; Turner v. Page, 186 Mass. 600; Oulighan v. Butler, 189

Mass. 287, 292; Flynn v. Butler, 189 Mass. 377, 388; Thomas v. Winchester, 2 Seld. 397. A similar liability exists where a caterer furnishes impure and unwholesome food by which the guests of his customer are made sick, or where a manufacturer or vendor knowingly sells for general use, without disclosing the existence of the defect, a machine, mechanical instrumentality or other article, which because of its defective construction or condition when put out causes injury. Bishop v. Weber, 139 Mass. 411, 417; McDonald v. Snelling, 14 Allen, 290; Flynn v. Butler, 189 Mass. 377; Lewis v. Terry, 111 Cal. 39; Huset v. Case Threshing Machine Co., 120 Fed. Rep. 865; Clarke v. Army & Navy Co-operative Society, (1903) 1 K. B. 155, 167. In all of these various transactions his liability does not rest on privity of contract, but the act itself is deemed not only a legal wrong, but may be said to be in violation of the duty he owed to those with whom he dealt, as well as of the implied duty which he owes to the community to refrain from the commission of acts of negligence whereby injury follows to its members in person or property. If damages are suffered he is responsible because they are such as reasonably should have been foreseen, though the exact way in which the accident is precipitated may be determined by a foreign cause. McDonald v. Snelling, ubi supra; Flynn v. Butler, ubi supra; Huset v. Case Threshing Machine Co., ubi supra; Lane v. Cox, (1897) 1. Q. B. 415, 417. It is within the last exception, if the plaintiff has a right of action against this defendant, that there it must be found." [The Court held that the plaintiff did not properly state his case in his pleadings, to give him a right of action.]

Question 308: (1) If A sells to B and expressly or impliedly warrants merchantability of the article sold, and B resells to C, can C sue A on the warranty? or assuming that a warranty does not run to B, can it be construed to run to C

(2) On what theory or theories can a subpurchaser, or any person other than the immediate vendee recover?

(3) A sues M, declaring that M knowing that one B was a retailer of fluids to be burned in lamps for illuminating pur

poses, and knowing that naphtha was explosive and dangerous for such use, sold and delivered naphtha to B knowing that B intended to retail it in his business, and that B, in ignorance of its dangerous qualities, retailed a pint of such naphtha to A to be burned in his lamp for illumination, and that the plaintiff, in like ignorance, used the fluid and was burned. Can A recover against M? (Wellington v. Downer Kerosene Oil Co., 104 Mass. 64.)

(4) A, druggist, negligently labeled a deadly poison as a harmless medicine, and sold it to dealers who retailed it to their customers. State right of customers to sue A? To sue retailers? (Thomas v. Winchester, 2 Seld. 397.)

(5) A, a painter, purchased of M, a manufacturer of stepladders, and such ladder, in use by B, one of A's employes, broke from a defect caused by M's negligence, and precipitated B to the ground, injuring him. Can B recover against M? (Schubert v. J. B. Clarke Co., 49 Minn. 331.)

(6) Plaintiff bought a coat from Young Bros., his local dealers, who bought it from the B. & S. Company, wholesalers, who knew that the fur collars of such coats contained dyes that sometimes poisoned the skin of some wearers, but were worn with safety by others. Plaintiff, who sustained poison by wearing such coat, sues the B. & S. Co. in tort. Can he recover? (Gerkin v. Brown & Sehler Co., 143 N. W. (Mich.) 48.)

(7) Plaintiff purchased a bottle of Malt Nutrine from a druggist, who procured it from a wholesaler, who procured it from the manufacturer, who advertised it as wholesome. The liquor was contaminated and plaintiff's wife was made sick and his young son died. Can plaintiff recover against the manufacturer on theory of broken warranty? on theory of tort? (Roberts v. Anheuser-Busch Brew. Ass'n, 98 N. E. (Mass.) 95.) (Note: See a collection of authorities in Huset v. Case Threshing Machine Co., 120 Fed. Rep. 865.)

(Note: (Generally held that for mere negligence in preparation or manufacture, the seller is not liable to a remote purchaser in tort, except in cases of an article to be used for food or medicine, or an inherently dangerous article.)

PART II

THE CONTRACT'S EFFECT AS TRANSFERRING

TITLE

Chapter 43. Transfer of title between sener and buyer, when rights of third persons not involved.

Chapter 44. Title and third person.

CHAPTER 43

TRANSFER OF TITLE BETWEEN SELLER AND BUYER, WHEN RIGHTS OF THIRD PERSONS NOT INVOLVED

§ 343. Rules for ascertaining intention of the parties. The first rule. § 344. Same: The second rule.

§ 347. Same: Fifth rule.

§ 348. Reservation, upon shipment of title in seller.

$ 349. Risk of loss.

§ 340. (Sales, Sec. 53.) Meaning of phrase "transfer of title."

(Note: By the phrase "transfer of title" we mean the change of ownership from seller to buyer. The contract of sale is for the purpose of making the buyer the owner. When does that change occur?

A number of rules are used as tests. The rule that title to unascertained or future goods is a rule that is not rebuttable. In such a case title cannot pass until the goods are ascertained. But if they are ascertained goods at the time of the sale, or be

come ascertained later, the rules are rules of presumption which govern "unless a different intention appears." Generally such different intention does not appear and the rules are applied.

The present chapter is concerned with title as between seller and buyer. The right of a third person to ignore the true state of the title is treated in the chapter following. However, it must not be understood that as a general rule, third persons can ignore the true state of the title. They can do so only in the exceptional cases noted in the chapter following. One of the important reasons for inquiring whether title has passed as between seller and buyer is to determine the present rights of creditors of, or purchasers from, seller and buyer.)

§ 341. (Sales, Sec. 54.) Goods unascertained.

Case 309. Uniform Sales Act, Sec. 17 and Sec. 6.

(Sec. 17.) "Where there is a contract to sell unascertained goods, no property in the goods is transferred to the buyer unless and until the goods are ascertained, but property in an undivided share of ascertained goods may be transferred as provided in Section 6."

(Sec. 6.) "(1) There may be a contract to sell or a sale of an undivided share of goods. If the parties intend to effect a present sale, the buyer by force of the agreement becomes an owner in common with the owner or owners of the remaining shares.

"(2) In the case of fungible goods, there may be a sale of an undivided share of specific mass, though the seller purports to sell, and the buyer to buy, a definite number, weight or measure of the goods in the mass, and though the number, weight or measure of the goods in the mass is undetermined. By such a sale the buyer becomes owner in common of such a share of the mass as the number, weight or measure bought bears to the number, weight or measure of the mass. If the mass contains less than the number, weight or measure bought, the buyer becomes the owner of the whole mass and the seller is bound to make good the deficiency from similar goods unless a contrary intent appears."

(Note: Illustration under Sec. 17. If A sells to B six chairs out of a group of 50 similar chairs, B cannot be said to be the