AlleN, J.

It was decided in Ashford v. Shrader, 161 N. C., 48, that although there is no implied warranty as to quality in tbe sale of personal property, tbe seller is held to the duty of furnishing property in compliance with tbe contract of sale — that is, at least merchantable or salable; and to this we may add that it shall be capable of being used, if intended for use.

This decision and others of like import in our reports (Medicine Co. v. Davenport, 163 N. C., 297; Tomlinson v. Morgan, 166 N. C., 557; *45 Grocery Co. v. Vernoy, 167 N. C., 427) rest upon tbe presumption that both buyer arid seller are acting honestly and with no intention to cheat or defraud, and as “the purchaser cannot be supposed to buy goods to lay them on a dunghill,” as expressed by Lord Ellenborough in Gardner v. Gray, 4 Campbell, 143, it will not be assumed that the seller desires to obtain money for a worthless article.

His Honor applied this rule in his charge to the jury, and the defendant, while admitting its correctness in proper cases, insists that it has no application here, because the defendant wrote the plaintiff on 12 March, before the contract was closed, that it would not guarantee the condition of the hearse.

The meaning of the word' “condition” is not clear, but it is certain that the defendant was not providing against the sale of a worthless article, because in the same letter he assigns as his reason for not guaranteeing condition the great room for difference of opinion as to the value of second-hand hearses, and in the next paragraph says: “We understand the hearse will be shipped to the buyer with lamps, curtains, pole, and everything ready for use ” and again, that its representative, who had seen the hearse, advised that it was worth every dollar the defendant was asking for it.

Crediting the defendant with the honesty of purpose declared in the statement in the letter, that “it is not our intention to deceive any purchaser of goods from us,” the defendant thought it- was selling and intended to sell a thing of value, ready for use and worth $100, but was not willing to guarantee the condition or quality, as there was so much difference of opinion as to the value of second-hand hearses.

As thus understood, the refusal to guarantee condition means only a refusal to warrant as to quality, and although the law writes this into every contract for the sale of personal property — that in the absence of express agreement there shall be no warranty as to quality — it holds the seller to the duty of furnishing an article merchantable or salable or that can be used. If so, why should the obligation of the seller be less because he writes in the contract what -the law would place there? In other words, if the law writes into a contract of sale that there is no warranty as to the quality of the goods sold, and still holds the seller to the duty of furnishing an article that is merchantable or salable, or one that can be used, why does not the same duty rest upon the seller when he, instead of the law, writes into the contract that he will not warrant the quality?

It may be said that this gives no effect to the language used, and strikes down one of the terms of the contract; and this would be true but for the correspondence preceding the letter of 12 March.

It appears, however, that the plaintiff wrote the defendant on 27 February that it was “in the market for a good second-hand funeral ear,” *46 and tbat the defendant replied on 1 March, “We are glad to bear, from your favor of the 27th inst., that you are in the market for a good lightweight, second-hand black funeral car. Accordingly, we inclose herewith the following designs”; and effect may be given to the refusal to guarantee by relieving the defendant from the possibility of liability upon an express warranty as to quality.

We are therefore of opinioñ that the charge of his Honor is supported by reason and authority.

There are several exceptions in the record, but all of them relied on by the defendant are dependent upon the question considered and decided.

There was also evidence upon the part of the plaintiff that the hearse was heavy weight, when he had contracted for one of light weight, and that while the description in the design called for steel tires, those on the hearse sent were tires made for rubber, on which there was no rubber.

No error;