59 A. 382 | N.H. | 1904
The theory of the plaintiffs upon which the case was tried and submitted to the jury cannot be sustained. *94
The contract was in writing. A warranty not expressed or implied from the terms used cannot be added by implication of law or parol proof. Whitmore v. Iron Co., 2 Allen 52, 58; Goulds v. Brophy,
"If an article or fabric in the particular line of his profession or business is ordered of, or contracted for with, a special and designated purpose, and the parties agree that it shall be constructed of a certain kind of materials, but the selection of the particular articles to be used and the way and manner of using and adapting them to the fabric, in the completion of the work, are left to the choice and judgment of the latter, without any special stipulations relative thereto, he will not in that case be liable for any loss or damage which may result from the imperfection of, or natural defects in, that kind of material; but he will be held to have impliedly warranted that he possesses the knowledge and skill requisite to use them properly and in the most advantageous manner, and that, in answering the order or in fulfilling his contract, he will use all reasonable care and skill in the selection and use of them. And if, through his failure in either of these respects, the article or fabric furnished is unsuitable or *95 insufficient for the purpose for which it was supplied, he will be responsible in damages therefor." Cunningham v. Hall, 4 Allen 268, 274, 275.
The obligation, "implied by reason and construction of law" (3 Bl. Com.* 163), of one who undertakes to perform service for another, is due care. He contracts to exercise the diligence and skill of the average man of the ability which he professes in like work. If he exercises such care he is not liable, in the absence of express contract, merely because the expected result is not obtained. Leighton v. Sargent,
"Where a known, described, and defined article is ordered of a *96
manufacturer, although it is stated to be required by the purchaser for a particular purpose, still if the known, defined, and described thing be actually supplied, there is no implied warranty that it shall answer the particular purpose intended by the buyer." Gregg v. Company,
But the law has other foundation than a collection of rules applicable to the decision of causes with the rigidity of statutes. It is obvious that a rule which settles one controversy, because consonant with reason and justice as applied to existing facts, may not so apply in another case in which different facts appear. Instead of attempting to merely cover the case before the court with one rule or the other, the proper inquiry is for the underlying reason which must be the basis of all rules. It has been seen that, interpreting the contract as the employment of the defendants to perform certain services, the measure of the defendants' liability is due care. Such was considered to be the measure of the manufacturer's liability in Gregg v. Company,
It has been several times remarked that the confounding of conditions precedent with implied warranties has resulted in great conflict in the decisions. Wilson v. Lawrence,
The delivery of the manufactured article from the manufacturer to the customer involves a transfer of title to the thing itself. Looking at the transaction merely as a sale, it has been held that when an article manufactured or supplied for a particular purpose is delivered, the contract of sale includes, as an implied term or warranty of the contract, the stipulation that the article is reasonably fit and proper for that use. Deming v. Foster,
In Rodgers v. Niles,
The great weight of authority rests the rule, that the manufacturer impliedly warrants or agrees to deliver an article made for a special purpose free from latent defects, upon the presumed superior knowledge of the manufacturer and the purchaser's reliance upon the knowledge and skill of the maker. Jones v. Just, L. R. 3 Q. B. 197, 202, 203; Kellogg Bridge Co. v. Hamilton,
In the present case, it might be found from the evidence reported that the plaintiffs, from their business, were acquainted with the characteristics of the material to be used, and that they knew it might contain defects which would render the manufactured article unfit, which could not be ascertained by due care. Where both parties have knowledge of the subject of the contract, and that it may possess latent defects which cannot be prevented by due care in the selection of materials or in the process of manufacture, it would be unreasonable to infer, in the absence of express language to that effect, that the seller intended to warrant what he could not know to be true, or that the purchaser, in reliance upon the skill *100 and judgment of the manufacturer, which he knows may be insufficient for the purpose, expected to receive a perfect article. It is more probable in such cases that the parties contracted with reference to such an article as would be produced by the skill and judgment which the manufacturer was known or professed to possess. In such case the measure of the manufacturer's liability is due care. In whatever light the transaction is examined, this is the measure of the defendants' liability under the contract in this case.
No reason appears from the case why the plaintiffs should have been unwilling to permit a test to be made of the steel which they claimed was defective. The power of the court to order such tests to be made is a question not raised or considered. There was certainly no error in informing the jury that the plaintiffs refused to permit such examination. The exceptions to the instructions given and refused upon the main question are sustained.
There was no error in the refusal to give the instructions requested upon the question of damages. The rod, if actually defective, would seem to have been as valuable after as it was before the defect was discovered. If the request was intended to limit the damages to the value of a sound rod less the value of the broken metal, that proposition would not constitute a correct statement of the rule. Hutt v. Hickey,
The only exception remaining which has been relied upon is that to the remarks of counsel in argument. These appear at least to be dangerously near the line, but the result already reached renders useless a consideration of the question whether the verdict could be sustained if this were the only error alleged.
Verdict set aside: new trial granted.
All concurred. *101