137 F. 332 | 8th Cir. | 1905
Lead Opinion
after stating the case as above, delivered the opinion of the court.
An implied warranty that an article will be fit for a particular .purpose may be inferred from a contract to make or supply it to accomplish that purpose, because the accomplishment of the purpose is the essence of •' the undertaking. But no such warranty arises but of a contract to make or supply a specific, described, or definite article, although the *manufacturer or dealer knows that the vendee buys it to‘ accomplish a specific purpose, because the essence of this contract is the furnishing of the specific article, and not the .accomplishment of the purpose. In other words, a warranty that a machine, tool, or article sold is fit and suitable to accomplish a particular purpose or to do a specific work may be implied when the manufacturer or dealer knows the purpose or work ■tb. be effected, and the purchase of the machine, tool, or article is in reality an employment of .the"vendor to do the work by making or •furnishing a machine, tool, or article to effect it. Kellogg Bridge Co., v. Hamilton, 110 U. S. 108, 116, 3 Sup. Ct. 537, 28 L. Ed. 86; Breen v. Moran, 51 Minn. 525, 53 N. W. 755; Leopold v. Van Kirk, 27 Wis. 152, 156; Brenton v. Davis, 8 Blackf. (Ind.) 318, 44 Am. Dec. 769; Omaha Coal, etc., Co. v. Fay, 37 Neb. 68, 75, 55 N. W. 211; Lee v. Sickles Saddlery Co., 38 Mo. App. 201, 205; Rodgers & Co. v. Niles & Co., 11 Ohio St. 53, 57, 78 Am. Dec. 290; White v. Adams, 77 Iowa, 295, 297, 42 N. W. 199.
But no implied warranty that a machine, tool or article is suitable to accomplish a particular purpose or to do a specific work ¿rises where the- vendor; orders of the manufacturer, or purchases of the dealer, a specific, described, or definite machine, tool, or article, although the vendor knows the purpose or work which' the purchaser intends to accomplish'with it, .and assures him ,that it; will .•effect it. Such an assurance, is but the expression of an opinion, rwhen .it is followed, by.a¡ written; contract,. complete in itself, which
If the purchaser, Mallory, or his agent, Haven, had described the strata through which he desired to drive the drill, and had ordered the Calyx Company to make or to select and furnish to him a drill that would bore the desired holes through these strata as rapidly and economically as a diamond drill, for an agreed price, and the plaintiff had accepted the order, an implied warranty would have arisen that the drill to be furnished under that contract would do the work as speedily and cjieaply as a diamond drill. But an accepted order to make and deliver a specific, described drill, which the vendor is engaged in making, has no such effect, although the manufacturer knows the use for which the vendee desires to obtain it. The reason for this rule is conclusive and unanswerable. When a manufacturer or dealer agrees to make or furnish an article that will accomplish a particular purpose, the accomplishment of the purpose is the substance of his undertaking, and he is free to make or to supply any article that will do the work required. If he furnishes an article that will accomplish this purpose, he performs his contract, although the article he supplies may differ widely from that contemplated by the purchaser when he made the agreement to buy. On the other hand, when the manufacturer or dealer contracts to make or to deliver a specific and definitely described article, to enable the vendor to accomplish a known purpose, the essential part of his obligation is the delivery of the identical article described in the contract; and the delivery
“If a man says'to another, ‘Sell me a horse fit to carry me,’ and the other sells a horse which he knows to be unfit to ride, he may be liable for the consequences ; but if a man says, ‘Sell me that gray horse to ride,’ and the other sells it, knowing that the former will not be able to ride it, that would not make him liable.”
. In Kellogg Bridge Co. v. Hamilton, 110 U. S. 108, 116, 3 Sup. Ct. 537, 28 L. Ed. 86, the bridge company had erected a portion of the falsework requisite for the construction of a bridge across the Maumee river. Hamilton made a contract with the company to purchase the falsework, the foundation of which was concealed by the river, and to complete the bridge. While he was engaged in the performance of this contract, the falsework gave way, by reason of defects in its construction, and precipitated thé iron upon it into the river. The Supreme Court held that the bridge company impliedly warranted that the work which it sold to Hamilton was suitable to construct the bridge upon because it built this •falsewcjrk, and had sold it to Hámilton to accomplish that specific purpose.
But in Seitz v. Brewers’ Refrigerating Co., 141 U. S. 510, 512, 519, 12 Sup. Ct. 46, 35 L. Ed. 837, the refrigerating company had been informed before it made its agreement that Seitz was cooling his brewery with ice, that he wanted to dispense with the use of ice, that no machine would be of any value to him unless it would enable him to accomplish this result, and that such a machine must continuously-cool. 150,000 cubic feet of air to a temperature of 40° Fahrenheit. Thereupon the- refrigerating company assured Seitz that its machine would accomplish this result, and, in reliance upon this statement, he entered into a written contract with the company to the effect that the latter should supply and put in operation in his brewery a No. 2 size refrigerating machine, as constructed by it, for the sum of $9,450. The company made and put such a machine in his brewery, but it did not work satisfactorily, and- it was incapable of cooling 150,000 cubic feet of air to 40° Fahrenheit. The Supreme Court held that this case fell under the rule that “where a known, described, and definite article is ordered of a manufacturer, although it is stated by the purchaser to be required for a particular purpose, still, if the-known, described, and definite thing be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer,” and .that there was neither an. expressed nor an implied warranty that the ice machine would do the work for which the manufacturer knew that it was purchased, or that it would cool 150,000 cubic
In Grand Avenue Hotel Co. v. Wharton, 24 C. C. A. 441, 443, 79 Fed. 43, 45, the vendee ordered two boilers for use in its hotel. The vendor knew the use to which the vendee intended to put the articles, and knew that it must necessarily use the muddy water of the Missouri river in order to operate them. The boilers were furnished, but they would not operate with the water of the Missouri river. This court held that there was no implied warranty that they would do so, and sustained the judgment for their purchase price.
In Boiler Co. v. Duncan, 87 Wis. 120, 58 N. W. 232, 234, 41 Am. St. Rep. 33, the purchaser informed the manufacturer before he made his order that he required a boiler that would produce 130 pounds steam, working pressure, and thereupon the latter offered to furnish a described boiler, and he accepted the offer. The boiler specified was furnished, but it failed to produce 130 pounds steam, working pressure, or to do the work for which the manufacturer • knew the purchaser ordered it. The Supreme Court of Wisconsin decided that there was no implied warranty that it would accomplish the particular purpose for which it was bought, and said:
“The distinction seems to be between the manufacture or supply of an article to satisfy a required purpose, and the manufacture or supply of a specified, described, and defined article, as in this case.”
In Goulds v. Brophy, 42 Minn. 109, 112, 43 N. W. 834, 835, 6 L. R. A. 392, the vendee ordered from the catalogue of .the manufacturer an auger outfit to bore wells. The vendor furnished the outfit, but it was not suitable to bore the wells which the vendee desired to sink. The Supreme Court of Minnesota held that there was no implied warranty that it would do so, and said:
“There was an implied warranty—or, more correctly speaking, condition of the contract—that it should conform to the description, and be of good material*338 and workmanship according to that description, but none that it should answer the purpose described or supposed.”
There are many authorities to the same effect, but it would be a work of supererogation to review them. The contract of the Calyx Drill Company in this case was expressed in writing. It was that it would make and deliver to the purchaser,. Mallory, one class F3 drill, and certain other machines and articles, which were definitely specified in the contract. When it supplied these articles, it performed its agreement, whether they were suitable to perform the specific work of boring holes in the land controlled by the vendee in Lucas county, Iowa, or not'. There is no averment or proof that they were not fit to accomplish the general purpose for which they were made—to bore holes in the earth under ordinary circumstances. The contract of the Calyx Drill Company was not that it would make and deliver a drill which would sink holes in the ground of the vendee in Lucas county as rapidly and economically as a diamond drill; and, if it had made and delivered a drill which would have done this, it would have been required, if the testimony of the defendants is true, to have furnished a different drill and different machinery from that described in its contract, and in so doing it would have failed to perform it.
The reception of the evidence and the charge of the court upon this subject were erroneous (1) because there was no implied warranty that the drill and machinery would be fit to bore holes through the specific strata in the earth in Lucas county; and (2) because, if there had been such a warranty, it would not have included a covenant that the machinen' would sink them ,as rapidly and economically as a diamond drill. Such a covenant could be imported into the contract only by an express agreement, and such an agreement was excluded by the fact that the contract is in writing, and by the rule that, where the written contract of the parties is complete in itself, the conclusive legal presumption is that it embodies the entire engagement of the parties, and the manner and extent of their obligations, so that parol evidence of other terms is inadmissible to extend, modify, or contradict it. Green v. Chicago & N. W. Ry. Co., 35 C. C. A. 68, 71, 92 Fed. 873, 877; McKinley v. Williams, 20 C. C. A. 312, 319, 74 Fed. 94, 101; Wilson v. New U. S. Ranch Co., 20 C. C. A. 244, 249, 73 Fed. 994, 999; Union Selling Co. v. Jones, 63 C. C. A. 224, 227, 128 Fed. 672, 675.
. The judgment is accordingly reversed, and the case is remanded to the court below, with instructions to grant a new trial.
Dissenting Opinion
(dissenting). I am unable to concur in the foregoing opinion. I make no question of the correctness of the general rule laid down, that, where a known and definite article is ordered of a manufacturer, although it be stated by the purchaser that it is required for a particular purpose, yet, if the known described thing be accordingly supplied, there is no warranty ■that it will answer the particular purpose desired by the purchaser. This ■ for the obvious reason that the vendor undertakes by the
“The only Implication in regard to it was that it would perform the work the described machine was made to do, and it is not contended that there was any failure in such performance. This, is not the case of an alleged defect in the process of manufacture known to the vendor, but not to the purchaser, nor of presumptive and justifiable reliance by the buyer on the judgment of the vendor rather than his own, but of a purchase of a specific 'article, manufactured for a particular use, and fit, proper, and efficacious for that use, but in respect to the operation of which, in producing a desired result under particular circumstances, the buyer found himself disappointed.”
Further on the court said:
“The alleged antecedent representations as to whether the machine possessed sufficient refrigerating power to cool this brewery were no more than expressions of opinion, confessedly honestly entertained, and dependent upon other ■ elements than the machine itself,'concerning which plaintiff in error could form an opinion as well as defendant; and the conduct of plaintiff in error in demanding, two days after the contract was executed, a written guaranty that the machine company would cool his building to 40° Fahrenheit, and keep it at that all the time, and in acquiescing in the company’s refusal to give the guaranty for reasons stated, and in thereupon afterwards ordering the company to go on with the work, seems to us to justify no other conclusion than that reached by the verdict.”
I respectfully submit that that case is not this. Here the vendee was engaged in prospecting for coal in given localities in the state of Iowa. Because of the peculiar geological formation of the earth to be bored through to reach the coal deposit, the diamond drill,
If it is to be established as law that such method of concluding such transactions precludes the vendee from asserting an implied warranty that the machine to be manufactured is suitable to the use for which the manufacturer is advised the purchaser is buying it, it does seem to me that the doctrine of implied warranty can afford no protection to the confiding purchaser against the smart secretary of the manufacturer.
- The case of Grand Avenue Hotel v. Wharton et al., 79 Fed. 43, 24 C. C. A. 441, when read with regard to the particular, facts of
“But when a known, described, and definite article is ordered of a manufacturer, although it be stated by the purchaser to be required for a particular use, yet if the known, described, and definite thing be actually supplied, there is no implied warranty that it shall answer the particular purpose intended by the buyer. * * * Here the purchaser contracted for a definite, well-known kind of boiler; its president having then a boiler of the same kind in use.”
From which it is apparent that the ruling was based upon the proposition that the buyer in that case was bargaining for a specific article known to him.
Mr. Justice Harlan, in Kellogg Bridge Co. v. Hamilton, 110 U. S. 108, 3 Sup. Ct. 537, 28 L. Ed. 86, cited in the foregoing opinion, discussing the applicability of the doctrine of implied warranty, summed up the rules as follows:
“According to the principles of decided cases, and upon clear grounds of justice, the fundamental inquiry must always be whether, under the circum*342 stances of the particular ease, the buyer had the right to rely and necessarily relied on the judgment of the seller, and not upon his own. In ordinary sales' the buyer has an opportunity of inspecting the article sold, and, the seller not_ being the maker, and. therefore having no special or technical knowledge of the mode in which it was made, the parties stand upon grounds of substantial equality. If there be, in fact, in the particular case, any inequality, it is such that the law cannot, or ought not to attempt to, provide against. Consequently the buyer in such cases—the seller giving no éxpress warranty and making no representations tending to mislead—is holden to have purchased entirely on his own judgment. But when the seller is the maker or manufacturer of the thing sold, the fair presumption is that he understood the process of its manufacture, and was cognizant of any latent defect caused by such process, and against which reasonable diligence might have guarded. This presumption is justified in part by the fact that the manufacturer or maker by his occupation holds himself out as competent to make articles reasonably adapted to the purposes for which such or similar articles ¿re designed. When, therefore, the buyer has no opportunity to inspect the article, or when,' from'the situation, inspection is impracticable or useless, it is unreasonable to suppose that he bought on his own judgment, or that he did not rely oxx “the judgment of the seller as to latent defects of which the lattex-, if he use due care, must have been informed during the process of manufacture. If the buyer relied, and, under the circumstances, had reason to rely, on the judgment of the seller, who was the manufacturer or maker of the article, the law implies a warranty that it is reasonably fit for the use for which it was designed ; the seller at the time being informed of the purpose to devote it. to that use. * * * In the cases of sales by manufacturers of their own articles for particular pxirposes, communicated to them at the time, the argument was uniformly pressed that, as the buyer could have required an express warranty, none should be implied. But plainly such an argument impeaches the whole doctrine of implied warranty, for there can be no case of a sale of personal property in which the buyer may not, if he chooses, insist on an express warranty against latent defects.”
In that case there was a written contract as to what the parties were to do in completing the bridge, in connection with the work already done by the bridge company. There was no express warranty about the character of the work the bridge company had already done. But the bridge company knew that Hamilton was to use the structure for a particular purpose.. Its internal construction and adaptability were known to the bridge company, but presumptively could be known to Hamilton only after using it. Of this situation the learned justice said:
“The buyer did not, because, in the nature of things, he could not, rely on his own judgment; and, in view of the circumstances of the case and the relations of- the parties, he must be deemed to have relied on the judgment of the Company, which alone of the parties, to the contract had or could have knowledge of the manner in which the work had been done. The law therefore implies a warranty that this falsework was reasonably suitable for such use as was contemplated by both parties. It was constructed for a particular purpose, and was sold to accomplish that purpose; and it is intrinsically just that the company, which held itself out as possessing the requisite skill to do work of that kind, and therefore as having special knowledge of its owxx workmanship, should be held to indemnify the vendee against latent defects arising.from the mode of construction, and which the latter, as the company well knew, could not by any inspection discover for himself.”
In Pullman Palace Car Co. v. Metropolitan Street Railway Co., 157 U. S. 94, 15 Sup. Ct. 503, 39 L. Ed. 632, the contract for the building, of the cars by. the Pullman Company was in. writing, containing_..specifiéátions. as to the. thing to be made and shipped—as
The utility of the machinery furnished by the plaintiff company in this case consisted entirely in the adaptability of the drill bit to accomplish the required boring in the peculiar strata formation where Mallory was exploring for coal. While the plaintiff submitted in writing an itemized specification of the equipment to be furnished by it, and the cost thereof, and Mallory agreed by the acceptance to pay the sum specified, it was practically contemporaneous with the information given the manufacturer by the purchaser as to the particular use to which it was to be applied, and 'with the knowledge that, unless it accomplished the desired work, it would be practically useless to the purchaser. It does seem to me therefore, that if there can be a case where the law writes into the executory contract, where the manufacturer undertakes to manufacture a machine with full knowledge of the purpose for which it is bought, a warranty that it is fit for the specified use, and when the manufacturer knows that the vendee is relying upon the manufacturer’s superior knowledge of the fitness of the machine, this is clearly a proper case for the application of this wholesome rule of law.
