55 Kan. 104 | Kan. | 1895
The opinion of the court was delivered by
Oral evidence therefore is inadmissable to vary or enlarge its terms. (Drake v. Dodsworth, 4 Kas.
It is clear tliat the safe was delivered to the plaintiffs in compliance with the terms of the written order. Does this order contain what in law amounts to a warranty? There are no words in it of express warranty. Does an order, however, for a fire-proof safe imply a warranty? It is contended that this is a case of a sale of ail article of the vendor's manufacture for a particular purpose, and imports a warranty that it is reasonably fit for that purpose, and free from latent defects arising in the process of manufacture and not disclosed to the vendor. In the case of Lukens v. Freiund, 27 Kas. 664, it appeared that the defendant was a miller ; that two copper clasps accidentally fell into some bran which was sold to the plaintiff. The clasps were swallowed by one of the plaintiff's cows and killed her. It was held that, in the absence of express warranty, the plaintiff could not recover for his .cow. The second clause of the syllabus reads as follows :
“While, when an article is ordered from a manufacturer to be by him manufactured for a specific and understood purpose, there is in some cases an implied warranty that the articles when manufactured will be reasonably fit for the purpose intended, yet when a purchase is made from him of a specific and completed article, he is to be regarded as a dealer, and his liability -determined accordingly.”
There is nothing in this case indicating that the safe purchased by the plaintiffs was manufactured specially for them, but the fair inference is that it was one of a kind of safes which the defendant manufactured for sale to whomsoever would buy. It is
Mount, supra, it -was said : “In general, the only contract which arises on the sale of an article by a description, by its known designation in the market, is that it is of the kind specified.” In Winsor v. Lombard, 18 Pick. 57, it was held that where a large number of barrels of mackerel branded under the inspection laws as No. 1 and No. 2 mackerel were sold in the spring with that description of them in the bill of parcels, it was not a warranty that the mackerel -were free from rust, although it appeared that mackerel affected by rust are not considered as No. 1 and No. 2. In Gossler v. Sugar Refinery, 103 Mass. 331, it was held that —
“One -who agreed to sell ‘ Manilla sugar ’ to refiners, and delivered to them what is usually called in commerce by that name, can, in the absence of fraud, misrepresentation or -warranty, recover the agreed price, though the article delivered contained more impurities than sugar known under that name usually does.”
The case of Shisler v. Baxter, 109 Pa. St. 443, seems to be opposed to White v. Miller, supra, holding that
In the case under consideration, the plaintiffs ordered a fire-proof safe. There is no proof, nor was it
The case of Hickey v. Morrell, 102 N. Y. 454, was an action against a warehouseman to recover for goods destroyed by fire in a warehouse represented to have a fire-proof exterior. It appeared that the window-frames and sash were wooden, and that there were no outside shutters, and it was held that the building could not be deemed fire-proof. In the course of the opinion it is said : ' ‘ Here the allegation is that the exterior of the building is fire-proof. It necessarily refers to the quality of the material out of which it is constructed or which forms its exposed surface. To say of any article it is fire-proof, conveys no other idea than that the material out of which it is formed is incombustible.” In the case of Insurance Co. v. Hird, 4 Tex. Civ. App. 82, in an action on a fire-insurance policy which stipulated —
“That the assured would keep his books in a fireproof safe, and that in case of loss he would produce the books, and on failure to so produce them, the policy would become void. The books were in good faith kept in a safe of the kind generally known and reputed as fire-proof, but which failed to preserve them from destruction by fire. • Held, That the insured had not warranted the safe to preserve the books, and that he complied with the condition.”
It is not claimed in this case that the safe itself was constructed of combustible materials, nor that it was burned, or even greatly damaged by fire. The plain