This same rule is also applicable in express warranty. In the case below it was held that a boiler warranted to give two hundred horse-power does not imply a boiler that will demonstrate the best economy in coal.

City Ry. Co. v. Basshor, 82 Md. 397, 33 Atl. R. 635.

Where, however, there was a warranty that the machine "would do as good work as any other," it was held in a recent Vermont case (1896) that this implied that the cost of operating should be no greater than other machines.

Vermont Farm Machine Co. v. Batchelder, 35 Atl. R. 378.

§ 165. Wholesomeness of Provisions:

Does the rule of fitness for a particular purpose include provisions purchased for the purpose of food? Does it mean that there is an implied warranty that the food is wholesome? Good authorities say yes, in answer to this question, and the older English and American cases support this view, and there is no good reason why the rule should not apply to provisions as well as to all other articles. The whole difficulty of this question is in the fact that an implied warranty of the wholesomeness of food, under any and all circumstances, has been confused with the question of implied warranty when the provisions have been sold by description or upon the reliance by the buyer upon the judgment and selection of the seller. This discrimination has often been lost sight of, and it is contended that, if this distinction be applied, then the true rule is that, in case the buyer does rely upon the selection of the seller, there is an implied warranty that the goods are fit for the particular use intended, namely, their use as food, and, therefore, wholesome. That, however, on the other hand, there is always an implied warranty that provisions inspected and selected by the buyer are wholesome, we believe to be untenable, although

some cases go to this length. It is said (Benjamin on Sales, Bennett's Notes, 7th ed., p. 691) that it is well settled that between dealers, however, the rule of implied warranty of wholesomeness does not apply. This may safely be doubted, since if one dealer trusts to the selection of the other dealer, the implied warranty of merchantability should apply, and it is a serious question if provisions are merchantable if they are not fit for food.

Care should be taken to distinguish cases arising on the question of the common-law implied warranty from those influenced by statutory provisions against selling unwholesome or adulterated food. Moreover, many of the cases of damages for injuries received from eating unwholesome food turn upon the question of negligence or of fraud, rather than of implied warranty.

Hoover v. Peters, 13 Mich. 51.

Reynolds v. Palmer, 21 Fed. R. 453.
Van Bracklin v. Fonda, 12 Johns. 468.

Giroux v. Stedman, 145 Mass. 439.

Wiedman v. Keller, 171 Ill. 93. (1898.)

Craft v. Webb, 96 Mich. 245, 21 L. R. A. 139, and note.

Howard v. Emerson, 110 Mass. 321.

Best v. Flint, 58 Vt. 543.

Lukens v. Freiund, 27 Kan. 664. (Holding that the rule does not apply, however, to food for cattle.)

French v. Vining, 102 Mass. 132.

Sheffer v. Willoughby, 163 Ill. 521. (A meal in a restaurant.)

§ 166. Warranties Implied from “Usage:"

Questions are sometimes raised upon implied warranties from usage or custom. Since, however, the proper office of usage or custom in trade is to give meaning to the terms of a contract, the principles involved depend merely upon matter of evidence in each particular case, and no general rules can be helpfully laid down.

Wetherill v. Neilson, 20 Pa. St. 448.

Schnitzer v. Oriental Print Works, 114 Mass. 123.

3. DELIVERY.

§ 167. After the contract has been formed and the time for its performance has arrived, the buyer, upon payment, is entitled to the possession of the goods, and the seller is under obligation to deliver them. The terms "possession " and "delivery" are, unfortunately, used in so many different ways, and under so many dissimilar circumstances, that some care is required to properly distinguish their significance. Delivery of title (or transfer of title) is not, of course, the same thing as delivery of the goods. There may be a transfer, or passing, of title without any delivery of the goods, since, between the parties, delivery of the goods is not always essential to the passing of title. On the other hand, there may be a delivery of the goods without a transfer of title, as we have previously noted.

"Delivery" is often defined as a transfer of possession, but here, again, the word "possession " requires attention, since it, also, is used in several ways. There is physical possession, which may be either "custody or "legal possession," and there is a "right of possession," all of which, under varying circumstances, are referred to as "possession." As to "delivery," we speak of "actual" delivery, "constructive" delivery, and "symbolic" delivery. Furthermore, additional confusion has been caused by speaking of the "kind" of delivery that is necessary in order to satisfy some one principle of the law, and the "kind" of delivery that is necessary to establish another principle; for example, it is said that "a higher kind of delivery" is required in order to pass title to the vendee against the vendor's creditors, than is required to merely pass the title to the vendee as against the vendor.

It is believed, however, that much of the alleged difficulty connected with the subject can be removed by keeping a few elementary principles clearly in mind. The