so, but in fact did inspect them, and he wrote to the appellees on November 12th acknowledging receipt of those shipped on the eleventh, stating "stock and measure all right," and inclosing check to cover indebtedness to date. On the 14th he acknowledged receipt of shipment of the 13th and said the stock to all appearances seemed to be all right, but he had just received a telegram from a customer that part of the oysters which he had received the day before were red. Two of his employés testified that they were apparently in good condition when they examined them in Baltimore.

The important question, therefore, to be determined is, whether the implied warranty that the oysters were merchantable is to be so extended as to warrant their quality, so as to protect the appellant to the time they were delivered by him to the purchasers from him, against a defect such as this complained of. The general principles applicable to implied warranties have been so frequently announced by this court that 887 it seems almost useless to repeat them, but it may be well to recall some of them. As was said in Horner v. Parkhurst, 71 Md. 116, 17 Atl. 1027: "Where the buyer has an opportunity of examining the thing sold, there is no implied warranty, in the absence of fraud or express warranty, that it shall be fit for the purpose for which it was bought. In such cases the rule caveat emptor applies, by which is meant that unless the buyer sees fit to require a warranty, he takes upon himself the risk as to quality"; citing Osgood v. Lewis, 2 Har. & G. 518, 18 Am. Dec. 317, Hyatt v. Boyle, 5 Gill & J. 110, 25 Am. Dec. 276, and Rice v. Forsyth, 41 Md. 389. The appellant, however, seeks to distinguish this case from those and others announcing a similar doctrine, on the theory that it only applies when the purchaser has had an opportunity to inspect specific existing chattels, and that it has no application to a case in which one orders goods to be supplied and delivered to him by a dealer in such articles. But conceding, as we do, that such distinction is recognized by the authorities, is the doctrine of implied warranty to be carried so far as to make the vendor liable for a defect such as this, which was not discovered until after the oysters were delivered, inspected, accepted and shipped to distant places? If, as the court below determined by granting the defendant's second prayer, it being a contract for future deliveries, there was an implied warranty that the oysters should be merchantable, it certainly had some limit. There was a better opportunity to ascertain whether they were

merchantable when they were received in Baltimore than there would have been if the appellant had gone to the appellee's place of business and selected them there. The appellant could not be required to accept them until they were delivered in Baltimore and he had the opportunity to inspect them, and when he not only had the opportunity, but actually did inspect them, in a way that was certainly as thorough, if not more so, than he could possibly have done at the appellees' place before purchase, and then accepted them as merchantable, which they apparently were, as both the appellant and the appellees had reason to believe, it is hard to see the necessity for or justice in a rule of law that would make the appellees liable for defects that 338 subsequently develop when it is conceded they would not have been if the appellant had inspected them before he purchased them. The theory of implied warranty of quality is that the purchaser has relied on the judgment of the seller, and has had no opportunity to see for himself, and ordinarily unless that is so there is no implied warranty, for when there is ample opportunity for the purchaser to inspect, and he does so, there is no reason for the law implying a warranty. In Horner v. Parkhurst, 71 Md. 116, 17 Atl. 1027, there was a controversy as to whether there was an express warranty of some benzine, and after referring to that, the court said that the doctrine of implied warranty had no application to the facts in the case. After saying what we have quoted above the court added: "So in this case if the defendant had an opportunity of inspecting and testing the benzine before he used it, then, in the absence of fraud or express warranty, it was no defense to the action that it turned out to be inferior in quality to what he supposed it to be or what he wanted." There the time fixed. by the court was not before the purchase but "before he used it," if he had the opportunity of inspecting and testing the benzine.

The general rule is that when a manufacturer sells articles for a purpose known to him, there is a warranty against latent defects growing out of the process of manufacture. That is because he is presumed to know the defect caused by the way in which it is made, and so if he knowingly uses improper materials in the manufacture of the article sold, but even then the authorities differ as to whether he is liable for latent defects in materials used which he could not have discovered by reasonable diligence, and it has been held in some cases that he does not impliedly warrant against latent defects unknown to him

resulting from the unskillfulness in the work of some other manufacturer, or from the use of defective materials furnished by others: 15 Am. & Eng. Ency. of Law, 2d ed., 1233. In the recent case of Queen City Glass Co. v. Pittsburg Clay Pot Co., 97 Md. 429, 55 Atl. 447, we held that where the manufacturer of clay pots, made by a secret process, sold some of them with knowledge of what they were to be used for, 339 there was an implied warranty under the principle approved in Rice v. Forsyth, 41 Md. 403, that "Where a manufacturer contracts to supply an article which he manufactures to be applied to a particular purpose, so that the buyer necessarily trusts to the judgment or skill of the manufacturer, there is in that case an implied term or warranty that it shall be reasonably fit for the purpose to which it is to be applied. In such a case the buyer trusts to the manufacturer or dealer, and relies on his judgment and not upon his own." As a reason for holding the manufacturer liable we said in the Clay Pot case that "It was impossible for the purchaser to know, by an inspection or otherwise, whether the various component elements had all been used, or, if used, whether they had been used in proper proportions," etc. In 15 American and English Encyclopedia of Law, 1235, the substance of what is quoted above from Rice v. Forsyth, 41 Md. 403, is said to be sustained by the weight of authority, where a dealer contracts to supply an article in which he deals to be applied to a particular purpose, but the author adds: "This rule, of course, does not extend to cases where the purchaser and the seller have equal means of knowledge as to the fitness of the thing sold for the purpose for which it is sold"; and on page 1237 it is said: "The liability of a grower or producer of an article or commodity sold for a particular purpose is identical with that of the manufacturer of an article or commodity so sold. This rule obviously has its limits. It does not impute to the seller knowledge as to the qualities or fitness which no human foresight or skill can attain, and raise an implied warranty in respect to them, when the vendor and the purchaser are in equal condition as to the means of knowledge, or the latter must understand from the nature of the case that the information, experience and knowledge of the vendor are not superior to his own." This qualification is very applicable to the case now before us. As we have seen, the member of the firm who testified for the appellees said he had never heard of red or bloody oysters before, while the appellant's agent was familiar with them. The appellant could not

L

therefore have relied on the appellees' judgment as to whether 840 these oysters were free from this defect. If the appellant or his agent could not detect the defect when they arrived in Baltimore, surely the appellees could not have done so, before they shipped them from Virginia. If it be true that they never heard of such defect, it is certain they never intended to warrant against it, and if it was known to the appellant, and he wanted to guard against it, he ought to have demanded an express warranty.

In addition to what we have said, we think it would be an exceedingly dangerous extension of the doctrine of implied warranties to apply it to such articles as oysters under the facts of this case. The evidence offered by the appellant is that a few oysters having this defect may impregnate or affect all in the pail or vessel in which they are shipped. There is some testimony tending to show that the appellant did include some oysters to his customers which were not purchased from the appellees. If that was the case, it may be that those sold by the appellees were not so infected until brought in contact with others that were. What causes the trouble is not explained, and indeed what the redness is is not well understood. It is not even shown that an oyster in which it afterward develops may not have been entirely free from it when shucked. The inference can be drawn from the evidence that it may be, as it was said that a few red oysters in a pail will in time affect all the others in that pail. Possibly the pails of the appellant were infected by the oysters of other dealers and produced the trouble. If it be a defect that may not develop until some days after they are shucked, and it is necessary to guard against loss on account of it, the purchasers can protect themselves against it by requiring express warranties, but we are not willing to so extend the doctrine of implied warranty as to make a vendor liable for such perishable articles as oysters for such length of time and under such conditions as this record discloses. The only case cited to sustain the appellant's theory that much resembles this is that of Beer v. Walker, 46 L. J. C. P. 677. There some rabbits that were shipped from Beer, in London, to Walker, in Brighton, were 341 accepted by Walker and shortly afterward those in one of the casks were found by him to be in an unmerchantable condition. An expression used by the court in that case, if approved, would not only make the seller liable for such deterioration of quality as would result necessarily from the transit to the purchaser, but even after that

time while he was shipping them to his customers. For reasons we have given, we cannot follow that decision, if it can be construed to apply to such facts as we have shown to be in this record, which we do not think it does. Without deeming it necessary to discuss the several prayers, we will affirm the judg ment of the lower court.

Judgment affirmed, the appellant to pay the costs.

The Principal Case is cited in the recent monographic note to Gold Ridge Min. Co. v. Tallmadge, 102 Am. St. Rep. 624, on implied warranties in contracts of sale.

BRAUER V.

BALTIMORE

REFRIGERATING AND

HEATING COMPANY.

[99 Md. 367, 58 Atl. 21.]

PUBLIC STREETS-Respective Rights and Remedies of Lot Owners and the Public.-The owners of lots abutting on streets are permitted to encroach to a limited extent for the necessary transac tion of their business upon the primary right of passage of the public, provided they do not unreasonably interfere with its exercise, but the right of the public to employ the streets for the purpose of travel and transportation is the paramount one, and that of the abutter to occupy them for other purposes is a permissive and subordinate one. (p. 308.)

PUBLIC STREETS-Right to Obstruct.-A Merchant or Manufacturer whose place of business abuts on the street of a populous city, may temporarily obstruct the sidewalk in front of his building in the process of loading or unloading merchandise or the product of his factory, provided he does not unreasonably encumber the footway or interfere with the reasonable use and enjoyment of the adjacent property; but if the adjacent owner suffers special or pecuniary loss from the unreasonable obstruction of the public street, he can maintain an action for damages or file a bill in equity for an injunction, if the nature of his damage is such as to make the latter form of action appropriate. (p. 308.)

PUBLIC STREETS.-The Extent of the Eight of an Abutting Owner to Obstruct a Sidewalk in front of his establishment is not to be determined by the necessity of his business, but by the public convenience and the reasonable enjoyment by adjacent owners of their property. (p. 308.)

PUBLIC STREETS, Unreasonable Use or Obstruction of, What 18.-The maintenance of a platform three and a half feet in height, four feet wide, and fifty-two feet long, on a sidewalk adjoining an abutting property owner's lot for the purpose of loading ice from his factory for several hours of the day on wagons standing at right angles to the platform and across such sidewalk, is an unreasonable use of the public street, which should be enjoined at the instance of the adjacent property owner. (p. 810.)