tion." Although the seed furnished was raised upon Bristol cabbage stocks, yet if "these stocks were planted in the vicinity of stocks of other varieties of cabbage and were fertilized by the pollen therefrom, and in consequence of the crossing of the varieties" the seed became impure and lost the character and quality of large Bristol cabbage-seed, it was not the article contracted for.

177. Buyer relies on his Judgment in Case of a Specified Article bought under its Trade Name. The cases which we have been considering are clearly distinguishable from those where the parties contract for "a specified article under its patent or other trade name." Here the buyer does not rely on the seller's superior skill and judgment. He takes the risk of its answering the purpose for which he procures it.3 Accordingly, if the buyer gives an order to the manufacturer for "your patent hopper and apparatus to fit up my brewingcopper with your smoke-consuming furnace; "4 or for "your Challenge auger outfit for boring wells; " or if the manufacturer declares, "I undertake to make you a two-color printing-machine on my patent principle; or, "I contract to sell eight hundred tons of my No. 1 and No. 2 foundry pig

1 White v. Miller, 71 N. Y. 118; 27 Am. R. 13 (1877); Fuhrman v. Interior Warehouse Co., 64 Wash. 159; 116 Pac. 666; 37 L. R. A. N. s. 88 (1911).

* Sale of Goods Act, § 14 (1); White v. Oakes, 88 Me. 367; 34 At. 175 (1896); Burdick's Cases on Sales, 348; Uniform Sales Act, § 15 (4).

'Gilcrest Lumber Co. v. Wilson, 84 Neb. 583; 121 N. W. 989 (1911); Paul & Co. v. Corp. of Glasgow, 3 F. 119 (1900). "Patterson's Smoke Prevention Suction Draught for Land & Marine Boilers."

⚫ Chanter v. Hopkins, 4 M. & W. 399 (1838). "It appears to me that this is the ordinary case of a man who has had the misfortune to order a particular chattel on the supposition that it will answer a particular purpose, but finds it will not " (p. 405).

Goulds v. Brophy, 42 Minn. 109; 43 N. W. 834 (1889). "Here the defendant simply ordered a specific article of a known, recognized, and defined make or description, which was manufactured by the plaintiffs, and in the market. There was an implied warranty or more correctly speaking, condition of the contract—that it should conform to the description and be of good material and workmanship according to that description, but none that it would answer the purpose described or supposed. The rule of caveat emptor applies" (p. 112).

Ollivant v. Bayley, 5 Q. B. 288 (1843).

1

iron; " or, "I agree and contract to supply a No. 2 size refrigerating machine as constructed by me, and to put it in operation in your brewery," 2- there is no implied engagement on the part of the seller that the specified article shall serve the special purpose for which the buyer obtains it. "Such a contract assumes that the parties know what is the character of the article" about which they are treating.

178. Whether a particular transaction is a sale by description, or a sale of a specified article under its trade name, is often a question of difficulty.3 In a recent decision upon this topic, Lord Chief Justice Russell said, that the trade-name provision of the English statute "is intended to meet the case, not of the supply of what I may call for this purpose raw commodities or materials, but for the supply of manufactured articles, steam-ploughs, or any form of invention which has a known name, and is bought and sold under its known name, patented or otherwise." 4

There is authority for the proposition that even on the “sale of a specified article under its patent or other trade name," the seller does engage that it has some fitness for the purposes for which it is manufactured and sold; and that if it is utterly worthless for such purposes, there is a total failure of consideration for the buyer's promise to pay the price.5

179. No Reliance by Buyer when he specifies the Materials or Methods. Nor does the buyer rely on the superior skill or judgment of the manufacturer in respect of materials or methods

1 Beck v. Sheldon, 48 N. Y. 365, 370 (1872).

2 Seitz v. Brewers' Co., 141 U. S. 510; 12 Sup. Ct. 46 (1891); Burdick's Cases on Sales, 343; Fuchs & Lang Co. v. Kettredge Co., 242 Ill. 88; 89 N. E. 723 (1909); No. 10 latest model bronzing machine."

Peoria Grape-Sugar Co. v. Turney, 175 Ill. 631; 51 N. E. 587 (1898); Ehrsam v. Brown, 76 Kan. 206; 91 Pac. 179 (1907); Am. Home Sav. Bk. v. Guard. Trust Co., 210 Pa. 320; 59 At. 1108 (1904); H. McCormick Lumber Co. v. Winans, 126 Wis. 649; 105 N. W. 945 (1906); Obenchain & Boyer v. Incorp. Town of Roff, 29 Okla. 211; 116 Pac. 782 (1911); Davis Calyx Drill Co. v. Mallory, 137 Fed. 332; 69 C. C. A. 662; 69 L. R. A. 973 (1905).

Gillespie v. Cheney (1896), 2 Q. B. 59, 64 (coal for bunkering steamers). 5 Nettograph Mach. Co. v. Brown, 28 Okla. 436, 437; 114 Pac. 1102 (1911), and cases cited.

for which he clearly stipulates.1 "It cannot be admitted that an artificer of any sort is to be considered as undertaking that any machine, instrument, or vessel, which he makes for the use and by the direction of another, and according to specifications furnished by his employer, shall answer the purpose for which it was designed by the projector. It is the projector, the man who designs the instrument and controls its material, shape, and mode of construction, who is responsible for its adaptation in material, shape, and mode of construction to the end for which it is intended.” 2

180. The Engagement of Breeders of Animals. We have seen that the grower of seeds, upon selling them, engages that they are free from any latent defect arising from the mode of cultivation. Does the breeder of an animal, in selling it for breeding purposes, impliedly engage that it is suitable for that use? The decisions upon this subject have been made in cases where the contracts related to specified chattels under their trade names, or the circumstances have shown that the buyer made his own selection. Still the judges have declared that no reason exists in these cases for holding the seller to such an implied undertaking. It is said that whether the animal possesses the power of begetting or bearing offspring does not depend upon the breeder's methods, nor is it a subject upon which the breeder has, or can fairly be presumed to have, more knowledge than the buyer, "until the course of nature has developed the truth."3 In a case where the plaintiffs bought a bull which proved impotent, the court said: "Because the

1 Cunningham v. Hall, 4 Allen (Mass.), 268, 275 (1862). J. I. Case Plow Works v. Niles, 90 Wis. 590, 603 (1895); 63 N. W. 1013. "The contract was not for the manufacture of wheels generally to satisfy a required purpose, but for the manufacture and delivery of a specific kind or plan of wheels of specified dimensions." The purchaser relied upon his own judgment. Roeblings Sons Co. v. Am. A. & Co., 231 Pa. 261; 80 At. 847 (1911); Caldwell Bros. & Co. v. Coast Coal Co., 58 Wash. 461, 467; 108 Pac. 1075 (1910).

2 Ricketts v. Sisson, 9 Dana (Ky.), 358, 359 (1840); Rollins Engine Co. v. Eastern Forge Co., 73 N. H. 92; 59 At. 382; 68 L. R. A. 441 (1904).

3 Simcoe Society v. Wade, 12 Up. Can. Q. B. 614, 616 (1855); McQuaid v. Ross, 85 Wis. 492, 495; 55 N. W. 705; 22 L. R. A. 187, with extended note; 39 Am. St. R. 864 (1893).

defendants raised the bull they sold to plaintiffs, they are not chargeable with any knowledge, or opinion even, in respect to a matter beyond the reasonable scope of human knowledge namely, whether the bull would prove impotent and to be wholly destitute of the power of procreating his kind; and hence the ground of presumed or reasonably imputed knowledge as a foundation in this case of an implied warranty" (condition) "wholly fails." The rule of the civil law is different.1

It is submitted, however, that the doctrine stated in the following paragraph should be applied to the sale of animals.2 181. Is a Dealer's Undertaking the same as a Manufacturer's? In England and in many of our jurisdictions the seller, who is accustomed to deal in the articles which are ordered for a particular purpose, incurs the liability which we have seen attaches to the selling manufacturer. Some of our courts hold, however, that he does not impliedly engage for the suitableness of the article. It is said, "In the case of a purchase of this description" (powder sold to be used for blasting), "the purchaser knows that the dealer relies upon the character and reputation of the manufacturer, and the purchaser has the same opportunity of determining as to any latent defects in 1 See Moyle's Contract of Sale, p. 195; Pothier's Contract of Sale (Cushing's ed., 1839), 126-134.

2 Merch. & Mech. Bk. v. Fraze, 9 Ind. App. 161; 36 N. E. 378 (1894). "The appellee Benjamin E. Fraze desired to purchase a stallion for breeding purposes, and so informed Galbraith Bros., through their agent. They were producers of and dealers in this kind of live stock, and undertook to sell Fraze a horse for breeding purposes. Here the contract was to supply an article which the seller produced, and was dealing in. The article was for a particular purpose, and the implication necessarily arises that the buyer relied upon or trusted in the judgment or knowledge of the seller. Hence, the sale carried with it an implied warranty that the horse should be reasonably fit for breeding purposes." Redhead Bros. v. Wyoming Cattle Inv. Co., 126 Ia. 410; 102 N. W. 144 (1905).

3 Sale of Goods Act, §§ 14, 15; Gammell v. Gunby Co., 52 Ga. 504 (1874); Burdick's Cases on Sales, 350; Dushane v. Benedict, 120 U. S. 630, 636 (1886); Zimmerman v. Druecker, 44 N. E. 557; 15 Ind. App. 512 (1896). This is also the rule of the civil law. "It is the same in regard to the dealer whether he is or is not the maker of the articles which he sells. By the public profession which he makes of his trade he renders himself responsible for the goodness of the merchandise which he sells for the use to which it is destined." Pothier's Contract of Sale, 132; Bulkley v. Honold, 19 How. (U. S.) 390 (1856), applying the law of Louisiana.

the merchandise as the seller, and consequently, under such circumstances, the rule of caveat emptor applies." This doctrine appears to have originated in Parkinson v. Lee,3 a case which, after having been practically overruled, has been nullified by the Sale of Goods Act in England, and the Uniform Sales Act.1

The better view is that where "the purchaser does not designate any specific article, but orders goods of a particular quality or for a particular purpose, and that purpose is known to the seller, the presumption is the purchaser relies upon the judgment of the seller, and the latter, by undertaking to furnish the goods, impliedly undertakes they shall be reasonably fit for the purpose for which they are intended; and he will be answerable for any defect in the material, or in the construction, by which the value is diminished." 5 In accordance with this view, it has been held that a dealer in pianos impliedly agrees, upon the sale of an instrument, that it is properly constructed and fit for use as a piano. Nor will the purchaser be deprived of the benefit of the undertaking by the fact that the written contract of sale is silent on this topic; and declares that "there is no agreement or understanding, otherwise than herein mentioned." 6

182. The Manufacturer as a Dealer. - Some courts have narrowed the manufacturer's implied engagement by treating him as a dealer, with respect to materials, which he buys from

1 American, etc. Co. v. Brady, 38 N. Y. Supp. 545 (1896); Healey v. Brandon, 66 Hun, 515; affirmed, 142 N. Y. 681 (1894); Forrow v. Andrews & Co., 69 Ala. 96 (1881); Commercial Realty & Con. Co. v. Dorsey, 114 Md. 172, 178; 78 At. 1099 (1910). But see the provisions of the Uniform Sales Act, L. of Md. 1910, ch. 346, § 33 (1); L. of N. Y. 1911, ch. 571, § 96 (1); Remy, Schmidt & Pleissner v. Healy, 161 Mich. 266; 126 N. W. 202 (1910).

Sands v. Taylor, 5 Johns. 395, 407-409 (1810); Dickinson v. Gay, 7 Allen, 29, 32 (1863).

2 East, 314 (1802); see Randall v. Newson, 2 Q. B. D. at p. 106. Chalmers' Sale of Goods Act (2d ed.), 33, 34; Mass. L. 1908, ch. 237, § 15 (1).

Gerst v. Jones & Co., 32 Gratt. (Va.) 518, 521, 522 (1879), distinguishing Mason v. Chappell, 15 Gratt. 572, as a case of sale of a specified article under its trade name.

Little v. G. E. Van Syckle & Co., 115 Mich. 480; 73 N. W. 554 (1898).