35 Mich. 104 | Mich. | 1876
Fletcher brought this action to recover the unpaid balance arising on a written contract for the sale by him of a patent diamond drill to decedent Ward. The cause was referred and the referee reported the facts and found the plaintiff below was entitled to recover three thousand nine hundred and twenty-nine dollars and eighty-three cents. Plaintiffs in error excepted to the report, but the court *overruled the exceptions and entered judgment as recommended by the referee.
Two objections are made: first, in ruling that on the facts as found there was no express warranty that the machine would do the work for which it was purchased; and, second, in deciding that there was no implied warranty to that effect. The referee finds that Fletcher knew Ward purchased with the design and for the purpose of using the machine in prospecting for minerals in Missouri and elsewhere, and that it proved practically worthless in that business. If there was an express warranty, there was no chance for implication. Was there any express warranty that the machine would work with any
Was there any implied warranty ? Plaintiffs in error claim there was, on the ground that Fletcher knew Ward was buying the machine for use in prospecting, that the former was to send an expert to Missouri to set it up and set it running, and informed Ward that it was good for boring in rock and had been used for prospecting in many places, and that the most he had known it to cut in one day was fifty feet.
Whether a warranty 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 they ought to be very strong to warrant the *inl:eren ce 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 conditions not agreeable to its plan or in harmony with its arrangements for being worked and kept in action.
Ward bought with the avowed object of using the machine as a practical convenience in exploring for minerals. Fletcher knew this; still both understood that the machine had not been contrived for this description of work, and that its ability to be really useful in that way had not been ascertained.
However sanguine either may have been that it could be used successfully in the way Ward wished to use it, the fact was yet to be decided by experiment. Fletcher'desired to sell and Ward desired to make the experiment. The parties en
The referee committed no error, and the judgment must be affirmed, with costs.