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that, under the law and evidence of the that any positive statement of a material case, the verdict should be for the defend- fact which is made with the intention of inant, and in refusing the request of the de- fluencing the buyer to buy, and the truth of fendant to charge the jury as to contribu- which is relied upon by the buyer, will contory negligence.

stitute a warranty, whether the seller intendIt is the contention of defendant that the ed to warrant the goods or not. The intenalleged conversation between Bailey, agent tion to warrant is conclusively presumed of defendant, and plaintiff, even if establish- from his effort to influence the buyer's aced, is not sufficient to constitute a warran- tions by a statement of fact.” ty; further, that there is no evidence show- Also 24 R. C. L. § 437: “To constitute ing any authority of Bailey to make the al

an express warranty the term 'warrant' need leged warranty; that there is no evidence of not be used; no technical set of words are any defect existing at the time the defend- required, and it may be inferred from the ant sold the fuse, and therefore no liability affirmation of a fact which induces the puron the part of the defendant, and further chase and on which the buyer relies and on that the court erred in refusing the request which the seller intended that he should so of the defendant to define what constituted do, but it has been said that the words used negligence on the part of the plaintiff in the must be tantamount to a warranty, and not alleged preparation and use of the fuse, and dubious or equivocal." in the manner of using the material at the The rule is well stated in Conkling v. time of the accident.

Standard Oil Co., 138 Iowa, 596, 603, 116

N. W. 822, 825, as follows: "A warranty L.

may rest in parol, and no particular form Are the words claimed to be used by Bai- of words is necessary thereto. A warranty ley sufficient to create a warranty? Plain- arises when there is a distinct assertion or tiff testifies to his conversation with Bailey: affirmation of fact—which is relied upon

"I asked the kind of fuse that I would respecting the quality of the goods, or the get. He said he would give me safety fuse. adaptability thereof to the purpose for I told him that I couldn't use anything ex- which they are desired.” See, also, J. I. cept slow-burning safety fuse with a minute Case Threshing-Mach. Co. v. McKinnon, 82 per foot. He says, “That is what I will Minn. 75, 84 N. W. 646; Cornish v. Friedship,' and left the impression that,

man, 94 Ark. 282, 126 S. W. 1079; Warren "The Court: Don't state your impres- V. Granger, 151 Ark. 453, 236 S. W. 607; sion. Just state what he said. A. He says, Shippen v. Bowen, 122 U. S. 575, 7 S. Ct. "That is what I will ship.' So he sold me 1283, 30 L. Ed. 1172; Briggs et al. v. Rume500 caps, blasting caps, 500 electric globe ly Co., 96 Iowa, 202, 64 N. W. 784. caps that is to be used with a powder with [2] While if the statement relied on as which we connect the wire, regular 'B' caps; a warranty could not as a matter of law be that is, the blasting caps supposed to be used considered as such it would be the duty of by fuse of various kinds and touching off the court to so declare, generally the quesby fire. I told Mr. Bailey that I couldn't tion of whether parol statements amount to use anything except the slow-burning fuse a warranty is a question of fact for the of a burning speed of a minute per foot. jury. Hughes v. Funston, 23 Iowa, 257; 24 He says, “That is what you will get.'” R. C. L. 438; Shippen v. Bowen, 122 U. S.

[1] Defendant claims that these words 575, 7 Sup. Ct. 1283, 30 L. Ed. 1172; Howere mere expressions of opinion, not in bart v. Young, 63 Vt. 363, 21 A. 612, 12 L. the nature of affirmation of facts, and were R. A. 693; Titus v. Poole, 145 N. Y. 414, 40 at best merely descriptive.

N. E. 228. Mechem on Sales, vol. 2, § 1235, defines [3] If the jury believed the testimony of a warranty as follows: “Any direct and plaintiff, they were warranted in finding positive affirmation of a matter of fact, as that the party selling the fuse-one Bailey distinguished from a mere matter of opin- -was fully cognizant of the purpose for ion or judgment, made by the seller during which it was intended; that plaintiff told the treaty of sale and as a part of the con- him he could not use anything except a fuse tract, designed by him to induce the action of a burning speed of a minute per foot, of the purchaser and actually to some ex- and that Bailey assured him that was what tent at least, relied upon by the latter in would be shipped; that such statement was making the purchase, will be deemed to be not one merely of an opinion, but was a & warranty."

distinct affirmation of a fact and intended to Tiedeman on Sales, 283, § 193, announc- influence the sale; and that plaintiff relied es the doctrine: "But the better opinion is 'on such affirmation in making the purchase.

ers.

3 F.(20) 12 Hence that the words, if used, constituted a judgment as to the burning speed of the warranty.

fuses purchased. Defendant in its argument claims that Were the circumstances sufficient to susplaintiff did not rely on the alleged state- tain a finding of the jury that there was ment of Bailey as a basis of his purchase implied authority to make the express warand that there was no warranty. The rec- ranty? The court submitted the question ord shows that plaintiff was asked the ques- to the jury as follows: "You are to detion directly whether he relied on the state- termine whether or not the defendant gave ments of Bailey as to the burning speed and to its agent, Bailey, authority to warrant the character of the fuse in his purchase of it burning period of the fuse sold by it. If and use of it, and replied that he did. there was no express authority, you are then

The court stated the law to the jury on to determine whether or not the authority this question as follows: “You are instruct- actually given by the defendant to its agent ed that in the purchase of an article any af- to sell the fuse would ordinarily and cusfirmation of a material fact as a fact by the tomarily carry with it authority to warrant vendor and relied upon as such by the pur- the burning period of the fuse." chaser will constitute a warranty whether There is a lack of harmony in the multithe vendor intended to warrant or not, but, tudinous decisions on the question of a sales if the vendor in making the statement of a agent's implied authority to make express material fact does so merely by way of com- warranties. We refer to a few of the textmendation or merely to express his opin- writers and authorities dealing with the subion, belief, judgment or estimate, such a ject. Benj. on Sales (7th Am. Ed.) 8 624, statement does not constitute a warranty.” says: "The general rule is, as to all conThis left to the jury the question of wheth- tracts, including sales, that the agent is auer the words used were merely a commenda- thorized to do whatever is usual to carry tion of the fuse sold, or were an affirmation out the object of his agency, and it is a of a material fact relied on by the purchas- question for the jury to determine what is It was a correct statement of the law. usual. If, in the sale of the goods confided

to him, it is usual in the market to give a II.

warranty, the agent may give that warranty

in order to effect a sale." [4] It is contended by defendant that

Mechem on Agency, 8 348, p. 219, lays there is no evidence in the record of author

down practically the same rule, viz.: "Auity granted in terms to the agent, Bailey, to make the alleged warranty, nor evidence general or special, to sell personal property

thority conferred upon an agent, whether of custom so to do. This is true. The rec

carries with it, in the absence of counterord shows that the fuses complained of were

vailing circumstances known to the party sent to the branch office at Little Rock for

with whom he deals, implied power to make the purpose of sale. Bailey was the agent

in the name of the principal such a warin charge of such branch office, and was en- ranty of the quality and condition of the gaged in selling the goods of defendant. property sold as is usually and ordinarily Whether he be termed a general agent or made in like sales of similar property at a general sales agent is of little consequence. that time and place.” Also the principle is He was sales agent for practically the en- recognized by Mechem and other writers tire state of Arkansas. It is in testimony

that, “if the sale is one in which, had it been that nothing was said to Bailey by the offi

made by the principal in person, the law cers of the company as to authority to make warranties, nor were there any restrictions of fitness for the contemplated use, express

would imply a warranty, e. g., a warranty in that respect imposed upon him. Bailey

warranty to the same effect, given by the testifies that three brands of fuse known as the Crescent, the Anchor, and the Clover

agent, must be deemed to be within the were handled at this branch office; that the scope of his implied authority.” Clover brand had a burning speed of 40

A good statement of the rule is found in seconds to the foot with a variation; that 2 Corpus Juris, 601, 602, as follows: “There the Crescent and the Anchor brands had a is considerable confusion in the decisions as burning speed of 30 seconds to the foot. So to the implied power of an agent to warit is apparent that Bailey was handling for rant the quality or condition of personal the company fuses of various burning capac- property sold by him. The rule which is ity. The length of time the fuses would burn supported by the more numerous and more was an essential factor in inducing sales. He recent decisions is that if, in the sale of testified that the customers relied on his that kind or class of goods which the agent

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is empowered to sell, it is usual in the mar- can be implied where the property is of a ket to give a warranty the agent may give description not usually sold with warranty." that warranty in order to effect a sale, and A well-reasoned case is Nixon Mining the law presumes that he has such author- Drill Co. v. Burk et al., 132 Tenn. 481, 485, ity, and that, if an agent with express au- 178 S. W. 1116, 1117 (L. R. A. 1916C, 411), thority to sell has no actual authority to where the court says: “The true rule is that warrant, no authority can be implied where an agent upon whom authority has been conthe property is of a description not usually ferred to sell personal property has implied sold with warranty; nor can à usage be authority from his principal to make such shown when its effect would be to create warranties in respect thereto as the law between the parties a new contract different would imply, had the sale been made by the in essential particulars, from that actual- principal direct, and, in addition, has imly made by them." And again on page plied authority to make in the name of the 605: “The implied power of an agent to principal such warranty of the quality and warrant title and quality rests upon the ne- condition of the property sold as is usually cessity and propriety of such warranties in and customarily made in like sales of similar the sale of goods. It is not therefore to be property at that time and place." extended to other warranties of an unusual A leading case is Johns v. Jaycox, 67 sort, however impossible the agent may find Wash. 403, 121 P. 854, 856, 39 L. R. A. (N. it to make a sale without giving such war. S.) 1151, 1154, Ann. Cas. 1913D, 471. The ranties. So also authority to warrant cer- court there discusses the adjudicated cases tain qualities conveys no power to give a and the confusion arising therefrom on the warranty as to other qualities."

question of implied authority to warrant, In Pickert v. Marston and others, 68 Wis. setting forth many decisions holding that an 465, 32 N. W. 550, 60 Am. Rep. 876, the agent upon whom general authority to sell court says: "Beyond question, an agent is conferred will be presumed to have aumay bind his principal, if he does not ex- thority to warrant unless the contrary apceed the power with which he is ostensibly pear, and says: “But an examination of invested, notwithstanding he has secret in- those cases shows that, while announcing a structions from his principal to the con- very broad rule, they in reality, when aptrary."

plied to the given facts, go only to the exIn Oster v. Mickley, 35 Minn. 245, 28 N. tent that the implied power of warranty by W. 710, it was held that a sales agent, in- the agent upon which a purchaser may rely trusted with personal property to sell, had extends to those things necessary to consumauthority to make a conditional sale on trial, mate the contract and usually incident thereor a contract to take effect as a sale, in case to and relating to the title, quality, or conthe article on trial work satisfactorily. dition of the thing sold. In none of them

In J. I. Case Threshing-Mach. Co. v. Mc- was the rule actually applied as authorizKinnon, 82 Minn. 75, 84 N. W. 646, it was ing warranties so extraordinary as that here held that a general agent, who has power to presented." sell property for his principal, in the ab- Conkling v. Standard Oil Co., 138 Iowa, sence of express restrictions upon his right 596, 116 N. W. 822, is a case where defendto warrant the same and notice of such re- ant sold to plaintiff oil to be used as a coolstrictions to the purchaser, may be presum- ing agent. It was claimed that defendant ed to have authority to do so.

guaranteed the oil was not inflammable and In Wait et al. v. Borne et al., 123 N. Y. was safe as a cooling medium. The fact was 592, 603, 25 N. E. 1053, 1055, the court that the oil was inflammable and not safe, says: “The idea upon which is founded the and ignited and destroyed plaintiff's maright to warrant, on the part of an agent, chine. The question of the lack of authority to sell a particular article, is that he has of the selling agent to warrant the oil was been clothed with power to make all the urged upon the court. There was no evicommon and usual contracts necessary or dence in that case of authority granted in appropriate to accomplish the sale of the terms, but the court based its decision upon article intrusted to him, and if, in the sale the essential attribute conferred on every of that kind or class of goods thus confided agency to do "all that is usual and necessary to him, it is usual in the market to give a to accomplish the object for which the agenwarranty, the agent may give that warranty cy was created.” Mechem on Agency, 8 347. in order to effect a sale, and the law pre- The court points out that the manufacturer sumes that he has such authority. If the of goods puts them into the hands of sales agent, with express authority to sell, has no agents to be sold, and, if the goods are desactual authority to warrant, no authority ignated for a particular trade, he expects 3 F.(20) 12 his agents to make that purpose known. The hardly more than the warranty the law case differs from this only in that the ven- would imply; no more in any event than a dor there is the manufacturer and here is matter of 20 seconds of time beyond the the dealer.

time the agent would have unquestioned auIn Schurchardt v. Allens, 1 Wall. (68 U. thority to warrant. S.) 359, 369 (17 L. Ed. 642), the court While there was no evidence of custom says: “Authority, without restriction, to an in sales of this character, the jurors were agent to sell, carries with it authority to undoubtedly familiar with buying and sellwarrant.” That statement of the Supreme ing and with what is reasonable and cusCourt cannot be taken as literally correct tomary in making sales. The court permitwithout some qualification, for certainly the ted them to apply their experience and implied authority of an agent to warrant knowledge as to what was usual in sales must be limited to those reasonable and us- in the determination of the question involvual warranties which inhere in the sale, and ed. Evidence is not merely the language which the agent can be presumed to have of witnesses on the stand, but also impresauthority to make in order to carry out the sions or reasonable inferences that may sale.

properly be drawn therefrom. We think It has been held that an agent authorized the jurors, even in the absence of evidence to sell has implied authority to warrant that of express custom as to warranty, were jusa binder will do as good work as any other tified in believing and understanding from in the market (Canham v. Plano Mfg. Co., 3 the record, in the light of their experience N. D. 229, 55 N. W. 583); that a band cut- as applied to the facts of the case, that the ter and feeder will do good work (Parsons agent, Bailey, could not have made sales of Band Cutter & Self-Feeder Co. v. Haub, fuses without authority to make a reason83 Minn. 180, 86 N. W. 14); that the power able warranty as to their burning speed; of the engine sold is sufficient to run the that such warranty was not unreasonable, separator (J. I. Case Threshing-Mach. Co. extraordinary, or unusual; that it was reav. McKinnon, 82 Minn. 75, 84 N. W. 646). sonable, proper, and essential in the sale of

The fuses in question here were sent to the goods with which he was intrusted; that the agency in Arkansas for the purpose of that the same was in no way beyond the being sold in the business of the agency. usage of the business; and that he was clothThose in charge of the agency had the au- ed with ostensible authority to make the thority to do all reasonable things necessary express warranty claimed by plaintiff to to accomplish the object of its creation, have been made. Bouck v. Enos, 61 Wis. which was to sell explosives, including dyna- 660, 21 N. W. 825; Putnam v. French, 53 mite caps, fuses, etc. It is in evidence that Vt. 402, 38 Am. Rep. 682; Tice v. Russell, the agency handled fuses, some of them 43 Minn. 66, 44 N. W. 886; Parsons Band with a burning speed of 40 seconds to the Cutter & Self-Feeder Co. v. Haub, 83 Minn. foot; others 30 seconds to the foot. These 180, 86 N. W. 14; Boothby v. Scales, 27 fuses were constructed in part at least for Wis. 626; Williston on Sales, § 445. the purpose of being used in dangerous

III. work, and the time they would burn was the very test of their serviceability. It appears

[5] Both parties argue the proposition of in the evidence that there were no limita- implied warranty.' In view of our conclutions upon Bailey's authority to make af- sion as to the question of express warranty, firmations of warranties concerning the discussion of implied warranty is unimporburning speed of the fuses sold, although tant; however, as the record presents ques

tions of interest with relation thereto, we rehe had no express authority in terms so to

fer to it briefly. do. In view of his handling fuses of different burning periods, nothing could be ordered a particular kind of fuse; that he

It is argued by defendant that plaintiff more natural, less out of the ordinary, than

was familiar with it; that he got exactly to have the authority, as such general sales what he ordered; and consequently, even if agent, to make warranties of a reasonable the defendant's agent knew the purpose of period for the fuse to burn. He could not the work for which the fuse was intended to otherwise have made sales. Had the alleged be used and assured him that it would efwarranty been that the fuse would burn a fect that purpose, it would be the mere exfoot in 40 seconds or in 30 seconds, it would pression of an opinion and not an implied not be contended under this record that the warranty. Such is the doctrine announced agent had no authority to make such war- by this court in Davis Calyx Drill Co. v. ranty. The alleged express warranty was Mallory, 137 F. 332, 69 C. C. A. 662, 69 L. R. A. 973, and Grand Ave. Hotel Co. v. N. W. 211, 213, as follows: "When one Wharton, 79 F. 43, 24 C. C. A. 441; and contracts to supply an article in which he by the Supreme Court in Seitz v. Brewers' deals, to be applied to a particular purpose, Refrigerating Machine Co., 141 0. S. 510, so that the buyer necessarily trusts to the 12 S. Ct. 46, 35 L. Ed. 837.

3 F.(20)-2

judgment or skill of the vendor, there is an Such claim, however, is not sustained by implied warranty that it shall be reasonably the record. Bailey, defendant's agent, was fit for the purpose to which it is to be apfully acquainted with the kind of dangerous plied; and the better doctrine is that this work that plaintiff was engaged in and for rule applies to dealers as well as to manuwhich he wanted the fuse. Bailey testified facturers, and not to manufacturers alone, that customers generally relied upon his as the plaintiff in error contends." From judgment about the burning speed of the the multitude of cases on this subject we fuse, and that he went ahead and sent them refer to a few, viz., Kellogg Bridge Co. v. the kind of fuse suitable to their particular Hamilton, 110 U. S. 108, 3 S. Ct. 537, 28 job; that he did this with plaintiff; and that L. Ed. 86; Grand Ave. Hotel Co. v. Wharhe assumed plaintiff was relying on him to ton, 79 F. 45, 24 C. C. A. 441; Neel v. West furnish the kind of fuse that he thought was Winfree Tobacco Co., 142 Ark. 505, 219 S. safe and suitable. Having stated the pur- W. 326; Oil Well Supply Co. v. John C. pose to Bailey and the particular use for Watson et al., 168 Ind. 603, 80 N. E. 157, which the fuse was wanted and the purpose 15 L. R. A. (N. S.) 868; Flynn v. Bedell to be accomplished, viz., his safety, and Bai- Co., 242 Mass. 450, 136 N. E. 252, 15 A. L. ley being a sales agent in charge of de- R. 1504; Oil-Well Supply Co. v. Priddy, fendant's agency at Little Rock, and selling 41 Ind. App. 200, 83 N. E. 623; Edwards these fuses, plaintiff had the right to rely v. Dillon, 147 Ill. 14, 35 N. E. 135, 37 Am. on Bailey's sending him fuse fit and suitable St. Rep. 199; Little v. G. E. Van Syckle & to reasonably accomplish the purpose. He Co., 115 Mich. 480, 73 N. W. 554; Zimmerdid not have the same means of knowledge man v. Druecker, 15 Ind. App. 512, 44 N. as to the fuse that Bailey would be assumed E. 557; Atkins Bros. Co. v. Southern Grain to have. An examination of the fuse would Co., 119 Mo. App. 119, 95 S. W. 949; Enghave disclosed nothing to him as to its burn- lish et al. v. Spokane Com. Co., 57 F. 451, ing propensities. In fact, there was no way 6 C. C. A. 416; Burnett v. Hensley, 118 for him to know whether the fuse was a Iowa, 575, 92 N. W. 678; Heinemann v. suitable one, and in the absence of such Barfield, 136 Ark. 500, 207 S. W. 62; Peterknowledge he had the right to trust to Bai- son v. Dreher, 196 Iowa, 178, 194 N. W. 53. ley's judgment. If the jury believed the testimony of plaintiff and his witnesses, they

IV. were justified in reaching the conclusion that [6] Defendant suggests that an implied the fuse was what was known as an instan- warranty cannot be read into this case, as taneous burning one, even though there was plaintiff has expressed in words the wartestimony that defendant did not make such ranty he relies on. An express warranty fuses, and they were justified in finding that excludes an implied warranty relating to the it was not fit for the purposes for which it same subject or of the same general nature, was sold, and consequently a breach of im- on the theory that no warranty should be plied warranty. Of course, the evidence is implied where the parties with relation to in marked conflict on this question.

the very same subject have expressed by While much has been written on this sub- words the warranty by which they will be ject, and many cases have drawn distinc- bound. This court has held in Reynolds v. tions between the manufacturer and the General Electric Co., 141 F. 551, 556, 73 C. dealer as to the rule of liability, we think C. A. 23, 28, that “an express warranty of the general law is well stated in Benj. on one of the qualities of an article excludes an Sales (7th Ed.) 8 645, as follows: "But implied warranty of other qualities of a where a chattel is to be made or supplied to similar nature." Benj. on Sales (7th Am. the order of the purchaser, there is an im- Ed.) 672; Chandler v. Thompson (C. C.) 30 plied warranty that it is reasonably fit for F. 38; J. I. Case Plow Works v. Niles & the purpose for which it is ordinarily used, Scott Co., 90 Wis. 590, 63 N. W. 1013; or that it is fit for the special purpose in- Reeves v. Byers, 155 Ind. 535, 58 N. E. 713; tended by the buyer if that purpose be com- Alpha Checkrower Co. v. Bradley, 105 Iowa, municated to the vendor when the order is 537, 75 N. W. 369; Junkin v. Hargrove & given.”

Arnold et al., 196 Iowa, 1387, 195 N. W. The rule is also stated in Omaha Coal, 217; De Witt v. Berry, 134 U. S. 306, 10 Coke & Lime Co. y. Fay, 37 Neb. 68, 75, 55 S. Ct. 536, 33 L. Ed. 896. An extended col

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