§ 1351. Specification by seller. It is otherwise, of course, where the seller is relied upon to furnish the specifica which occurred the following clause: "At the water tube boilers standard factory (114 sq. ft. per H. P.) these boilers will give 1000 H. P." Held, that this did not oblige plaintiffs to furnish boilers which would give a heating surface of two thousand three hundred square feet each, since the amount of heating surface was clearly shown by the specifications, which rendered it merely a matter of calculation. In Wisconsin Pressed Brick Co. v. Hood, 54 Minn. 543, 56 N. W. R. 165, 60 Minn. 401, 51 Am. St. R. 539, the buyer ordered a quantity of brick of a manufacturer which were expressly stipulated to be of the grade known as common, to be of good quality and equal to a sample shown. The seller knew the purpose for which the buyer intended to use them, but it was held that if the brick furnished were of the kind specified no warranty of fitness could be implied. So in Berthold v. Seevers Mfg. Co., 89 Iowa, 506, 56 N. W. R. 669, a quantity of piling was ordered, but the buyer, instead of leaving the seller to supply what he thought suitable, expressly stipulated what the quality, material and dimensions should be. Held, that no implied warranty of fitness would arise. (Ky.), 358, 35 Am. Dec. 141, the order was for a steam cylinder to be constructed according to the buyer's specifications, though known to be designed for a particular use for which it proved insufficient. Held, that there was no implied warranty. of fitness on the part of the maker. Said the court: "It cannot be admitted that an artificer of any sort is to be considered as undertaking that any machine, instrument or vessel which he makes for the use and by the direction of another. and according to specifications furnished by his employer, shall answer the purpose for which it was designed by the projector. It is the proprietor, the man who designs the instrument, and controls its material, shape and mode of construction, who is responsible for its adaptation in material, shape and mode of construction to the end for which it is intended. The artificer, who actually constructs it, is only bound to do his work in a substantial, workmanlike and skil ful manner, and to pursue the specification in the contract or the direction of his employer, in regard to material, shape and mode of construction. If he does this, he is entitled to a reasonable reward for his labor, though the machine, instrument or vessel may wholly fail to perform its intended office." See also to like effect: Cosgrove v. Bennett, 32 Minn. 371, 20 N. E. R. 359; Cunningham v. Hall (1862), 4 Allen (Mass.), 268; Archdale v. Moore (1858), 19 Ill. 565. In Talbot Paving Co. v. Gorman, 103 Mich. 403, 61 N. W. R. 655, 27 L. R. A. 96, there was a contract to furnish paving stones according to specifications, a copy of which was given to the seller. It was held that there was no implied warranty that the stones would be fit for the purposes A fortiori, is the seller not liable of the buyer. where he expressly warned the buyer In Ricketts v. Sisson (1840), 9 Dana that the time and method which he tions as being those suited to the needs of the buyer.1 Here, clearly, the general rule applies. § 1352. Manufacturer warrants kind, materials and workmanship.- But though there is no implied warranty of fitness in the case of the order of a specified or ascertained article, as seen in the preceding section, there is still an implied warranty on the part of the manufacturer that the article which he supplies shall be of the kind agreed upon, and that it shall be constructed of good materials and in a workmanlike manner.2 § 1353. Also that goods are new and of his own make. He also impliedly warrants, in the absence of anything to show a contrary intention, that the goods which he supplies are new, and of his own manufacture." § 1354. Warranty of fitness by breeder or grower.— The same general principles apply to sales by the grower or breeder of the thing sold. If the buyer informs the seller of his purpose, leaving to the latter the determination of that which will supply the need, and necessarily relying upon the seller's judg ment rather than his own, the seller will be held to an implied warranty that the thing which he supplies will be suitable to the purpose; as, for example, that the seed that he sells will specified were not suitable. Mattoon v. Rice (1869), 102 Mass. 236. 1 City of Elgin v. Shoenberger, 59 Ill. App. 384; affirmed, Shoenberger v. City of Elgin (1896), 164 Ill. 80, 45 N. E. R. 434; Iroquois Furnace Co. v. Wilkin Mfg. Co. (1899), 181 Ill. 582, 54 N. E. R. 987. 2 Little v. Van Syckle (1898), 115 Mich. 480, 73 N. W. R. 554; Goulds v. Brophy, 42 Minn. 109, 43 N. W. R. 834, 6 L. R. A. 392; Cosgrove v. Bennett, 32 Minn. 371, 20 N. W. R. 359; Ricketts v. Sisson, 9 Dana (Ky.), 358, 35 Am. Dec. 141; Archdale v. Moore, 19 Ill. 565; Union Hide & L. Co. v. Reissig, 48 Ill. 75; Kohl v. Lindley, 39 Ill. 195, 89 Am. Dec. 294; Pease v. Sabin, 38 Vt. 432, 91 Am. Dec. 364; Waring v. Mason, 18 Wend. (N. Y.) 425. 3 Manufacturer or dealer warrants that article shall be new and not second hand. Grieb v. Cole, 60 Mich. 397, 27 N. W. R. 579, 1 Am. St. R. 533. But one who orders new machinery and knowingly accepts second-hand machinery waives the defect. Aultman-Taylor Co. v. Ridenour (1896), 96 Iowa, 638, 65 N. W. R. 980. 4 Johnson v. Raylton, 7 Q. B. Div. 438. grow, or that an animal which he supplies is competent as a breeder.1 § 1355. —. But, on the other hand, where these elements are lacking, where the buyer relies on his own judgment, where a definite and ascertained article is agreed upon, and the buyer gets the very thing he bargained for, there will be no warranty implied that it is suitable, notwithstanding that the seller was the grower and knew the purpose of the buyer.2 And what is true of the grower or producer is equally true of the dealer in like articles under similar circumstances. 1 In Shaw v. Smith, 45 Kan. 334, 25 Pac. R. 886, 11 L. R. A. 681, Shaw, a dealer, undertook to supply Smith with flax-seed for sowing, and Smith agreed to sow a certain acreage and sell back to Shaw all the product at a fixed price. The seed was supplied and Smith duly sowed it, but it failed to germinate. It was held that there was an implied warranty that the seed should be fit for the purpose. The court cited and relied upon cases, cited in section 1334, ante, holding that where the seller undertakes to supply seed of a certain kind there is an implied warranty that it is of that kind, i. e., that it will produce vegetables or fruits of the kind of which it purports to be the seed. Wolcott v. Mount, 36 N. J. L. 262, 13 Am. R. 438, 38 N. J. L. 496; White v. Miller, 7 Hun, 427, 71 N. Y. 118, 27 Am. R. 13; Van Wyck v. Allen, 69 N. Y. 61, 25 Am. R. 136; Whitaker v. McCormick, 6 Mo. App. 114. To like effect: Hoffman v. Dixon (1900), 105 Wis. 315, 81 N. W. R. 491, 76 Am. St. R. 916, also cited in § 1334, ante. And where a dealer in horses sold a stallion, knowing that the buyer relied on the seller's judgment to supply one suitable for a breeder, there was held to be an implied warranty that the horse furnished was so suitable. Merchants' Bank v. Fraze, 9 Ind. App. 161, 36 N. E. R. 378, 53 Am. St. R. 341. So in Edwards v. Dillon, 147 Ill. 14, 35 N. E. R. 135, 37 Am. St. R. 199. Compare with cases in following note. As to the construction of such warranties, see "Construction of Warranties," ante, § 1250. 2 See ante, § 1350. In McQuaid v. Ross, 85 Wis. 492, 55 N. W. R. 705, 22 L. R. A. 187, 39 Am. St. R. 864, though the sellers of a bull were stockbreeders and raised the bull, and knew that the buyers bought him for use as a breeder, there was held to be no implied warranty that he was such, it appearing that the buyers saw and inspected the bull before purchase, exacted no warranty, did not ask the sellers' judgment or opinion respecting his capacity, but bought a particular and ascertained animal and received the identical animal that they bought. The same rule was applied to the sale of a cow in Scott v. Renick, 1 B. Mon. (Ky.) 63, 35 Am. Dec. 177 (though here the sellers were not the breeders); and of a bull-calf, in White v. g. Fitness for Food. § 1356. Sale by dealer of provisions for consumption by buyer implies warranty of fitness for food. The question of implied warranty upon a sale of articles of food seems to be involved in some uncertainty. It is, practically everywhere, agreed that, where a dealer or ordinary trader sells goods for immediate consumption by the buyer, an implied warranty arises that the goods are wholesome and fit for human food.1 Blackstone declares the rule more broadly, saying that "in contracts for provisions it is always implied that they are wholesome;" and this rule has been often quoted in the earlier American cases, though it has also been frequently asserted that the American cases were based upon a misconception of Blackstone's meaning.3 § 1357. How when seller not a dealer. In a leading case in Michigan, it was expressly held that a warranty arises upon a sale for consumption by the buyer, although the seller Stelloh, 74 Wis. 435, 43 N. W. R. 99; and of a stallion, in Wood v. Ross (Tex. Civ. App.), 26 S. W. R. 148; and of cabbage seed, in Shisler v. Baxter, 109 Pa. St. 443, 58 Am. R. 738 (stated ante, § 1314, note). 1 See Wiedeman v. Keller (1898), 171 Ill. 93, 49 N. E. R. 210; Howard v. Emerson, 110 Mass. 320, 14 Am. R. 608; Divine v. McCormick, 50 Barb. (N. Y.) 116; Moses v. Mead, 1 Denio (N. Y.), 378, 43 Am. Dec. 676; Fairbank Canning Co. v. Metzger, 118 N. Y. 260, 23 N. E. R. 372, 16 Am. St. R. 753; Burch v. Spencer, 15 Hun (N. Y.), 504; Hart v. Wright, 17 Wend. (N. Y.) 267, 18 id. 449; Hyland v. Sherman, 2 E. D. Smith (N. Y.), 234; Goad v. Johnson, 6 Heisk. (Tenn.) 340; Ryder v. Neitge, 21 Minn. 70; Hoover v. Peters, 18 Mich. 51; Sinclair v. Hathaway, 57 Mich. 60, 23 N. W. R. 459, 58 Am. R. 327; Copas v. Provision Co., 73 Mich. 541, 41 N. W. R. 690; Craft v. Parker, 96 Mich. 245, 55 N. W. R. 812: Humphreys v. Comline, 8 Blackf. (Ind.) 516; Williams v. Slaughter, 3 Wis. 347. 2 Com., III, 166. 3 See, for example, the discussions in Green v. Ashland Water Co. (1898), 101 Wis. 258, 77 N. W. R. 722, 43 L. R. A. 117, 70 Am. St. R. 911, and Hanson v. Hartse (1897), 70 Minn. 282, 73 N. W. R. 163, 68 Am. St. R. 527. 4 Hoover v. Peters (1869), 18 Mich. 51. In this case Peters had sold to Hoover and others the carcasses of three hogs which he knew they intended to use as food in their lumber camp. In an action to recover the price, the defense was that the hogs proved to be unfit for food. The case does not show what the business of Peters was, other than that he was not a dealer in meats. The argu. is not a dealer or trader in such articles. This case, however, stands practically alone, and the clear weight of the authorities is certainly to the effect that where the seller is not a dealer, or, though a dealer, if he sells to another dealer as an article of merchandise merely and not for consumption by the buyer, no warranty that the goods are fit for food arises. An action for ments assume him to have been a farmer. No claim of fraud was made. The majority of the court, i. e.. Cooley, Graves and Campbell, JJ., concurred in repudiating the distinction between dealers and nondealers, holding that "any purchase for domestic use is protected." Christiancy, J., dissented. In Giroux v. Stedman, 145 Mass. 439, 14 N. E. R. 538, 1 Am. St. R. 472, the court refer to Hoover v. Peters as the only case they have been able to find which supports this view, and decline to follow it. In Sinclair v. Hathaway (1885), 57 Mich. 60, 23 N. W. R. 459, 58 Am. R. 327, it was held that where a baker sold bread to a bread peddler who sold directly to the consumer, there was an implied warranty between the baker and the peddler that the bread was fit for food. The court said that bread could not be treated as an article of commerce, but was designed for immediate consumption as food, and was of no use unless it was fit for food. In Copas v. Provision Co., 73 Mich. 541, 41 N. W. R. 690, the seller was a packer and manufacturer of "sweet pickled hams; "the buyer was a local market-man who ordered goods of the seller and paid for them before he had an opportunity for inspection. The goods proved to have been defectively prepared. The court held the seller to an implied warranty that they were fit for food. Whether the court were correct as to the form of the warranty or not can be of little practical consequence, because there would under the circumstances be at least a warranty of merchantability (ante, § 1340), and the consequences could not have been materially dif ferent. In Craft v. Parker (1893), 96 Mich. 245, 55 N. W. R. 812, 21 L. R. A. 139, the question arose between the consumer and the local dealer of whom he bought. The dealer was also the manufacturer of the food — spiced bacon,-and the case was therefore within the clear rule of liability. 1 In Howard v. Emerson (1872), 110 Mass. 320, 14 Am. R. 608, a farmer sold a certain cow to a butcher and market-man knowing that the latter intended to kill and sell the cow for beef. There was no express warranty and no fraud, and it was held that the law would not imply a warranty that the cow was fit for food. Needham v. Dial, 4 Tex. Civ. App. 14, 23 S. W. R. 240, is practically identical. So is Goad v. Johnson, 6 Heisk. (Tenn.) 340. In Giroux v. Stedman (1888), 145 Mass. 439, 14 N. E. R. 538, 1 Am. St. R. 472, two farmers sold dressed pork to a family for domestic use. The sellers knew that their hogs had been exposed to the hog cholera, and that some of them had it; but there was no evidence that the animals killed had it, and there was evidence that, even if they had, the meat was not necessarily unwholesome. The ac |