the point, there cannot be an implied warranty upon the same point.

Sec. 18. THE IMPLIED WARRANTIES. (1) THOSE OF TITLE. In every sale or contract to sell there are the implied warranties of title that the seller has, or will have when the title is to pass, an unencumbered ownership in the goods with right to sell them.

The subject of implied warranties of title is an important one. In some senses one buys personal property at his own risk, that is subject to the right of an unknown owner to claim the goods and assert his ownership even against a person who has bought them from one in whose possession he found them and whom he believed, because of such possession, to be the real owner. There are indeed many cases in which the real and unknown owner cannot do this, yet also many in which he can, and the law for the protection of the buyer implies in every sale the warranty that the seller is the owner and has a right to sell the goods and that no encumbrances exist against them. If, therefore, one purchases goods which he is afterwards compelled to give up to another because of a superior title, or if one is compelled to pay out money to satisfy lawful claims that existed against those goods and because of which the goods could be taken in the hands of the buyer, he has his remedy against his vendor.

Sec. 19. THE IMPLIED WARRANTIES. (2) THOSE CONTAINED IN A SALE BY DESCRIPTION. When a buyer contracts for goods that shall be of a certain description, there is an implied warranty that goods will be furnished which will meet that description.

If one orders or purchases goods by stipulating that they shall be of a certain description, the seller must furnish goods as described. And if the order is by way of description that is in effect a stipulation that the goods shall be of that description. We are considering a situation where there is no sale of specific or ascertained goods, but of goods to be supplied according to a description given. If goods are not supplied according to that description, there is a failure to fulfill the contract. Thus if I order "Ceara scrap rubber, second quality", goods conforming to that description must be furnished. 24

(3)

Where

Sec. 20. THE IMPLIED WARRANTIES. THOSE CONTAINED IN A SALE BY SAMPLE. there is a contract to sell or a sale by sample, there is an implied warranty that the bulk shall correspond with the sample in quality. If the seller is a manufacturer of such goods, there is a further warranty that the goods shall be free from any defect, rendering them unmerchantable, which would not be discoverable on reasonable examination of the sample.

A sale by sample is in effect a sale by description. The sample becomes a term of the contract. The quality of the sample must be the quality of the goods furnished.

If the seller is a manufacturer, and the defect in the sample is not discoverable by ordinary inspection, the existence of such hidden defect in the sample constitutes a breach of warranty, for he must deliver goods of the apparent quality of the sample.

Every case in which a part of the bulk is shown,

24.

Gould v. Stein et. al., 149 Mass., 570.

or something is supposed to be a representative of the bulk is not a sale by sample. It must be the mutual understanding of the parties that the seller is in effect saying: the goods are like this. But if the circumstances are such that it can only be said that the seller was simply giving assistance to the buyer that he might form his own judgment, and there was no representation that the bulk would equal the part shown, as where the bulk was present and might conveniently be examined it is usually held there was no sale by sample.25 The circumstances must be inquired into. Thus if one is buying a carload of apples which are present and could be conveniently examined by the buyer, and the seller selects an apple at random and remarks that they are good apples there is no warranty that all the apples are like the one shown. In the absence of fraud, the buyer would be bound to take the apples, though not all so good in size or quality. But in an Illinois case the buyer who was lame requested the seller to climb up on the car and show him one of the apples, which the buyer did, remarking that they were all like that, it was held there was a warranty that they should equal the one shown.26 In cases by sample, the seller must be in effect saying, "the goods are like this sample," and the buyer must rely on that assertion.

25. Bierne v. Dord, 5 New York Reports, 95. "That a personal examination of the bulk is not practicable or convenient, furnishes no sufficient ground, of itself, to say that a sale is by sample (such) is doubtless a strong fact in reference to the question of the character of the sale, whether it was or was not made by sample.

26. Hanson v. Busse, 45 Illinois Reports, 496.

Sec. 21. THE IMPLIED WARRANTIES. (4) THE WARRANTY OF QUALITY THAT GOODS ORDERED BY DESCRIPTION SHALL BE MERCHANTABLE. Where goods are purchased of a manufacturer or grower, or (in some jurisdiction and by the Uniform Sales Act) of one who is merely a dealer in goods of that kind, and there is a reliance on the seller's judgment and skill, there is an implied warranty that the goods are merchantable, that is, salable as goods of that general kind.

Where the seller is a manufacturer or grower and the buyer had no opportunity to give the goods that reasonable inspection which would have disclosed the defect, there is, unless the facts show a contrary intention, and that the buyer relied on his own judgment, an implied warranty of merchantability, that is, that the goods have in them no remarkable or unusual defect but are goods in good condition as goods of that general kind. In some states the warranty extends to sales by those who only deal in as well as to those who manufacture or grow, the goods sold.

Thus A orders "waste silk" from B. B sends silk unsalable under that description. This is a breach by B.

If there was opportunity to make inspection, the buyer is generally held to have no right to complain in reference to defects which such examination should have disclosed; this, of course, in the absence of fraud by the seller. In that case, the rule is: "Let the buyer beware" (“Caveat emptor").

Sec. 22. THE IMPLIED WARRANTIES. (5) THE WARRANTY OF QUALITY THAT GOODS ORDERED FOR A PARTICULAR PURPOSE KNOWN TO THE SELLER SHALL BE FIT FOR THAT PURPOSE.

Where goods are purchased for a particular purpose which is expressly or by implication made known to the seller there is an implied warranty that the goods shall be fit for that purpose; unless the buyer preclude in that regard the exercise of the seller's judgment by ordering a known, described and definite article, or purchases 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. The general qualifications stated in the preceding section apply likewise here. Thus, usually and in most states, one who is a dealer would not impliedly warrant for any particular purpose; but the special circumstances might show that he did.

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