$1345. To what sellers rule applies. This rule is most naturally and appropriately applicable to the case of a manufacturer rather than a dealer, and it has sometimes been said to be confined to undertakings by a manufacturer only. to be applied. In such case the buyer trusts to the manufacturer or dealer and relies upon his judgment, and not upon his own." Accord: Brown v. Edgington, 2 M. & G. 279; Jones v. Bright, 5 Bing. 533; Drummond v. Van Ingen, 12 App. Cas. 284; Randall v. Newson, 2 Q. B. Div. 102; Jones v. Padgett, 24 Q. B. Div. 650. The American cases are full to the same effect: Kellogg Bridge Co. v. Hamilton (1884), 110 U. S. 108, 28 L. ed. 86; Nashua Iron Co. v. Brush (1898), 50 U. S. App. 461, 33 C. C. A. 456, 91 Fed. R. 213; Pease v. Sabin (1866), 38 Vt. 432, 91 Am. Dec. 364; Beals v. Olmstead (1852), 24 Vt. 114, 58 Am. Dec. 150; Getty v. Rountree (1850), 2 Pin. (Wis.) 379, 54 Am. Dec. 138; Brenton v. Davis, 8 Blackf. (Ind., 1847) 317, 44 Am. Dec. 769; Rodgers v. Niles (1860), 11 Ohio St. 48, 78 Am. Dec. 290; Woodle v. Whitney (1868), 23 Wis. 55, 99 Am. Dec. 102; Snow v. Schomacker Mfg. Co. (1881), 69 Ala. 111, 44 Am. R. 509; Poland v. Miller (1883), 95 Ind. 387, 48 Am. R. 730; Best v. Flint (1885), 58 Vt. 543, 56 Am. R. 570; Sinclair v. Hathaway (1885), 57 Mich. 60, 23 N. W. R. 459, 58 Am. R. 327; Gerst v. Jones (1879), 32 Gratt. (Va.) 518, 34 Am. R. 773; Morse v. Union Stock Yards (1891), 21 Oreg. 289, 28 Pac. R. 2, 14 L. R. A. 157; Edwards v. Dillon (1893), 147 Ill. 14, 35 N. E. R. 135, 37 Am. St. R. 199; Breen v. Moran (1892), 51 Minn. 525, 53 N. W. R. 755; Omaha Coal Co. v. Fay (1893), 37 Neb. 68, 55 N. W. R. 211; Baumbach Co. v. Gessler (1891). 79 Wis. 567, 48 N. W. R. 802; Merrill v. Nightingale (1875), 39 Wis. 247; Blackmore v. Fairbanks (1890), 79 Iowa, 282, 44 N. W. R. 548; Davis v. Sweeney (1888), 75 Iowa, 45, 39 N. W. R. 174; Smith v. Hightower (1886), 76 Ga. 629; Wilcox v. Hall (1875), 53 Ga. 635; Gammell v. Gunby (1874), 52 Ga. 504; Robson v. Miller (1879), 12 S. C. 586; Thomas v. Simpson (1879), 80 N. C. 4; Byers v. Chapin (1876), 28 Ohio St. 300; Lee v. Sickles Saddlery Co. (1889), 38 Mo. App. 201; Armstrong v. Johnson Tobacco Co. (1890), 41 Mo. App. 254; Downing v. Dearborn (1885), 77 Me. 457, 1 Atl. R. 407; Craver v. Hornburg (1881), 26 Kan. 94; Weed v. Dyer (1890), 53 Ark. 155, 13 S. W. R. 592; Curtis Mfg. Co. v. Williams (1886), 48 Ark. 325, 3 S. W. R. 517; Overton v. Phelan (1859), 2 Head (39 Tenn.), 445; Fox v. Harvester, etc. Works (1890), 83 Cal. 333, 23 Pac. R. 295; Ottawa Bottle & Flint Glass Co. v. Gunther (1887), 31 Fed. R. 208; Union Hide & Leather Co. v. Reissig (1868), 48 Ill. 75; Beers v. Williams (1854), 16 Ill. 69; Tacoma Coal Co. v. Bradley (1891), 2 Wash. 600, 27 Pac. R. 454; Pacific Iron Works v. Newhall (1867), 34 Conn. 67: Port Carbon Iron Co. v. Groves (1871), 68 Pa. St. 149; Wood Mower & Reaper Co. v. Thayer (1888), 50 Hun (N. Y.), 516; Kennebrew v. Southern Automatic, etc. Co. (1894), 106 Ala. 377, 17 S. R. 545; Coyle v. Baum, 3 Okla. 695, 41 Pac. R. 389. In the case of articles designed for use, the warranty would include an assurance that the article could be used in the ordinary manner, as, for example, that lime sold for use in There can be no question, however, that it extends to the dealer also, provided the conditions stated in the rule are present, namely, an executory agreement by the dealer to supply an article not yet ascertained, but left to be determined by him according to his own judgment in view of the purpose to be subserved by it as communicated to him by the buyer.1 § 1346. Extent of the warranty - Latent defects.The obligation of the seller, at least where he is also the man making mortar could be used by mixing with the usual quantity of water. Omaha Coal Co. v. Fay (1893), 37 Neb. 68, 55 N. W. R. 211. Where there is a sale of oats to a liveryman to be used in feeding his livery horses, with knowledge of such purpose in the seller and no inspection by buyer, there is an implied warranty that the oats are fit for the purpose. Coyle v. Baum (1895), 3 Okla. 695, 41 Pac. R. 389. In Kellogg Bridge Co. v. Hamilton (1884), 110 U. S. 108, 28 L. ed. 86, 3 Sup. Ct. R. 537, it appeared that the bridge company had a contract for the construction of a railroad bridge and had partially completed it. The company then made a contract with Hamilton to complete the structure, purchasing of the company the work and material already supplied by it. Among this was certain "false work" which the bridge company had already put in position. This false work subsequently proved to have been defectively constructed (though this could not be discovered when the contract was made), and Hamilton sustained loss by reason of its giving way. Held, that there was an implied warranty on the part of the bridge company that the false work was reasonably fit for its pur pose, and that Hamilton might recover. So a barrel-maker who undertakes to supply barrels to hold whiskey impliedly warrants their fitness, and is liable for loss by leakage caused by defective materials and workmanship (Poland v. Miller, 95 Ind. 387, 48 Am. R. 750); and a box-manufacturer who undertakes to supply boxes for the packing of tobacco, being left at liberty to select his own materials, impliedly warrants their fitness, and is liable for a loss of tobacco from moulding caused by the use of unseasoned wood. Gerst v. Jones, 32 Gratt. (Va.) 518, 34 Am. R. 773. 1 Dushane v. Benedict, 120 U. S. 630, 7 Sup. Ct. R. 696, 30 L. ed. 810; Shaw v. Smith, 45 Kan. 334, 25 Pac. R. 886, 11 L, R. A. 681; Jones v. Just, L. R. 3 Q. B. 197; Morse v. Union Stock Yards, 21 Oreg. 289, 28 Pac. R. 2, 14 L. R. A. 157 [citing Jones v. Just, supra; Lewis v. Rountree, 78 N. C. 323; Hanks v. McKee, 2 Litt. (Ky.) 227, 13 Am. Dec. 265; Ketchum v. Wells, 19 Wis. 34; Whitaker v. McCormick, 6 Mo. App. 114; Flint v. Lyon, Cal. 17; Chicago Packing & P. Co. v. Tilton, 87 Ill. 547; Messenger v. Pratt, 3 Lans. (N. Y.) 234); McCaa v. Elam Drug Co. (1896), 114 Ala. 74, 21 S. R. 479, 62 Am. St. R. 88. ufacturer, seems to be absolute, and will attach notwithstanding the article supplied failed of its purpose only because of some latent defect of which the seller was ignorant.' He certainly is liable for latent defects of which he has knowledge, This was so held in Randall v. Newson (1877), 2 Q. B. Div. 102, C. A. Here defendant, a carriage builder, had sold to plaintiff a carriage fitted with thills. Plaintiff afterwards ordered a pole to be made and fitted to it. Defendant made the pole, which broke when used, because, as the jury found, the material was not suitable, though they also found that defendant had been guilty of no negligence. The breaking of the pole caused injury to plaintiff's horses and he brought suit. There was a verdict for the plaintiff. On motion for judgment for defendant, the court of queen's bench ordered judgment for him on the ground that the finding of the jury amounted to a finding of a latent defect which no care or skill could discover, and therefore the case was governed by Readhead v. Railway Co., L. R. 4 Q. B. 379. Plaintiff appealed to the court of appeal, where the judgment was reversed. Brett, J., who delivered the opinion, said: "The question is, what, in such a contract, is the implied undertaking of the seller as to the efficiency of the pole? Is it an absolute warranty that the pole shall be reasonably fit for the purpose, or is it only partially to that effect, limited to defects which might be discovered by care and skill?" He then proceeds to an exhaustive discussion of the authorities, distinguishing Readhead v. Railway Co., supra, and Francis v. Cockrell, L. R. 5 Q. B. 501, which followed it; and concludes that the undertaking is absolute, that the article must in fact be reasonably suitable and thus conform to the undertaking, and that if it does not so conform "it does not do so more or less because the defect in it is patent or latent or discoverable." Rodgers v. Niles (1860), 11 Ohio St. 48, 78 Am. Dec. 290, is to same effect, though two of the judges dissented, relying on Hoe v. Sanborn, post. In Briggs v. Hunton (1895), 87 Me. 145, 32 Atl. R. 794, 47 Am. St. R. 318, it was held that the owner of a stallion, affected with a disease of which the owner was ignorant. and who sells the services of the stallion for breeding purposes, is not liable upon any implied warranty against such secret defect. Hoe v. Sanborn (1860), 21 N. Y. 552, 78 Am. Dec. 163, is opposed to Randall v. Newson, supra. In an elaborate opinion, Selden, J., holds that while the manufacturer is liable for latent defects growing out of the process of manufacture, he is not liable for latent defects in materials used "which he is not shown and cannot be presumed to have known." (See also other New York cases cited in following note.) Bragg v. Morrill (1876), 49 Vt. 45, 24 Am. R. 102, is also opposed to some degree. Here defendant furnished a shaft for use in plaintiff's factory. Defendant bought the shaft of another manufacturer, turned it to fit plaintiff's pulleys, and supplied it to plaintiff at an agreed price per pound for the shaft, and an agreed price and, if he is the manufacturer, he is liable for defects which grow out of the process of manufacture, for these he is presumed to know.1 § 1347. Reasonable fitness.-The warranty, unless more is stipulated for or clearly contemplated, does not demand the best possible article to supply the purpose, or that it shall be per day for the time consumed in turning it. It proved to be defective by reason of latent defects in the material, produced by the unskilfulness of the original maker, and for which defendant was not responsible and of which he had no knowledge. Said the court: "We think the result of the cases on implied warranty is, that the vendor of an article for a particular purpose does not impliedly warrant it against latent defects unknown to him, and which have been produced through the unskilfulness of some previous manufacturer or owner, without his knowledge or fault, except in those cases where the sale of the article by him is, in and of itself, legally equivalent to a positive affirmation that the article has certain inherent qualities inconsistent with the claimed defects, as is the case in the sale of provisions for domestic use. On this ground the defendant is not liable on an implied warranty of the shaft for the latent defects that caused it to break, and were wholly unknown to him, and were not produced through any fault or unskilfulness on his part, but wholly through the fault or unskilfulness of the manufacturer of the shaft from the raw material." Quoted with approval and applied in McKinnon Mfg. Co. v. Alpena Fish Co. (1894), 102 Mich. 221, 60 N. W. R. 472. Under the California code, see Hoult v. Baldwin, 67 Cal. 610, 8 Pac. R. 440. Under the Georgia code, see Snowden v. Waterman (1898), 105 Ga. 384, 31 S. E. R. 110. 1 Manufacturer liable for secret defects growing out of process of manufacture.- Hoe v. Sanborn, 21 N. Y. 552, 78 Am. Dec. 163; Pease v. Sabin, 38 Vt. 432, 91 Am. Dec. 364; Leopold v. Van Kirk, 27 Wis. 152; Hoult v. Baldwin, 67 Cal. 610, 8 Pac. R. 440; Carleton v. Lombard (1896), 149 N. Y. 137, 43 N. E. R. 422; Bierman v. City Mills Co. (1897), 151 N. Y. 482, 45 N. E. R. 856, 37 L. R. A. 799, 56 Am. St. R. 635; Kellogg Bridge Co. v. Hamilton (1884), 110 U. S. 108, 28 L. ed. 86; Nashua Iron Co. v. Brush (1898), 50 U. S. App. 461, 33 C. C. A. 456, 91 Fed. R. 213. Drummond v. Van Ingen, 12 App. Cas. 384; Mody v. Gregson, L. R. 4 Exch. 49; and Heilbutt v. Hickson, L. R. 7 C. P. 438, stated ante in the notes to section 1329, are also excellent illustrations. If some defects are unavoidable in manufacture, the seller who manufactures the goods impliedly warrants that the defects in these goods are not greater or more numerous than usual. Tennessee River Compress Co. v. Leeds (1896), 97 Tenn. 574, 37 S. W. R. 389. Dealer, not manufacturer, not liable for secret defects of which he is ignorant.- White v. Oakes (1896), 88 Me. 367, 34 Atl. R. 175, 32 L. R. A. 592; though he would be liable if he knew of them. Id. perfect of its kind or perfectly adapted to its use; if it is of the kind usually manufactured and used and reasonably fit for the purpose, this is all that the law requires. And if the article is reasonably fit, there is no further warranty implied that it will in practice produce any particular result, as, for example, in the case of machinery sold, that it will manufacture goods of any particular grade or quality, or of any particular amount,' unless the grade, quality or amount enters into the purpose specified. § 1348. Article originally designed for different pur pose-Second-hand goods.-And though the buyer's purpose be known to the seller, still if the article supplied is, to the knowl edge of both parties, one designed for an entirely different purpose, and its fitness for the buyer's use is therefore more or less conjectural, it is said that the circumstances ought to be very cogent to raise a warranty of fitness. It is said also that the warranty will not attach where the article, e. g., machinery, is expressly sold as a second-hand article." § 1349. Warranty not implied where buyer selects the article or a special and ascertained article is ordered.The implied warranty of fitness is not to be extended to cases Harris v. Waite, 51 Vt. 481, 31 Am. R. 694; Tennessee River Compress Co. v. Leeds (1896), 97 Tenn. 574, 37 S. W. R. 389. 2 Conant v. National State Bank, 121 Ind. 323. 22 N. E. R. 250 [citing Robinson Mach. Works v. Chandler, 56 Ind. 575; Chanter v. Hopkins, 4 M. & W. 399; Ollivant v. Bayley, 5 Q. B. 288; Port Carbon Co. v. Groves, 68 Pa. St. 149]. 3 Rice v. Forsyth, 41 Md. 389. Certainly if the amount to be done is not disclosed to the seller, and the buyer's complaint is that it will not do as much as he expected. Id. 4 McGraw v. Fletcher, 35 Mich. 104, where it is said: "Whether a war ranty of utility in the working of a machine in some special service not strictly within the sphere of action for which it was contrived can be implied must depend upon the particular facts, and it seems reasonable to conclude that they ought to be very strong to warrant the inference of an agreement by the seller that a machine contrived for work of a given kind and within a given range will operate well in practice in work of a different character or in work required to be carried on under con ditions not agreeable to its plan or in harmony with its arrangements for being worked and kept in action." 5 Ramming v. Caldwell (1891), 43 |