Sec 221

that on a sale by a manufacturer of goods of a class manufactured by him, there is an implied contract that the goods were of his manufacture

In Scotland, however, it was held, in 1880 and 1881, that where a manufacturer tenders goods of equal value with those manufactured by himself, in performance of a contract for the sale of such goods, the purchaser is not entitled to refuse them. There is, therefore, a conflict on this point between the Scotch and the English courts, which will be remitted to. the house of lords for settlement. The question is discussed in an article in the Journal of Jurisprudence, reprinted in the American Law Record for May, 1882 (vol. x. p. 641). - It is to be observed, however, that the Scotch judges were not unanimous in the decision they reached, and that those holding that the manufacturer was not liable agreed that, when he has a peculiar make or brand in the market, or when it can be supposed that there is any pretiam affec-

Sec 224

An implied warranty is not to be extended to goods open to the inspection of the buyer, supposing he has both opportunity and capacity adequately to judge, he buying on this inspection.1 tionis, he is bound to supply goods of his own make, even if there be no stipulation to that effect in the contract. "Where the conflict of opinion commences," says the Journal of Jurisprudence, "is where none of these elements are present, where the article sold has no special repute, or name, or other distinction, but is such that one maker's make is as good as another's." 1 Infra, sec 227, 245, and 907; Benj. on Sales, 3d Am. ed. sec 657; Jones v. Just, L. R. 3 Q. B. 197; Gardiner v. Gray, 4 Camp. 144; Deming v. Foster, 42 N. H. 165; Vandewalker v. Osmer, 65 Barb. 556; Lord v. Grow, 39 Penn. St. 88; see Hight v. Bacon, 126 Mass. 10, cited infra, sec 907; Morris v. Thompson, 85 111. 16; Cogel v. Kniseley, 89 111. 598; Robinson Machine Works v. Chandley, 56 Ind. 575; Gammell v. Gunby, 52 Ga. 504. In Hyatt v. Boyle, 5 Gill & J. 110, the warranty in such cases is limited to cases where the examination is "impracticable." The rule in Randall v. Newson, above given, in implying a warranty of merchantability, goes beyond the earlier English cases, which limit such warranty to cases where there is no opportunity given the buyer of examination. The latter has been the prevalent rule in the United States. Stevens v. Smith, 21 Vt. 90; Mixer v. Coburn, 11 Met. 561; Lamb v. Crafts, 12 Met. 353; Hart v. Wright, 17 Wend. 276; Wright v. Hart, 18 Wend. 456; Salisbury v. Stouter, 19 Wend. 159; Hoe v. Sanborn, 21 N. Y. 552; Van Wyck v. Allen, 69 N. Y. 61. In Howard v. Hoey, 23 Wend. 350, Bronson, C. J., argues that a warranty of merchantability is to be implied in all executory sales; S. P., Moses v. Mead, 1 Denio, 378; and to this effect is the rule in Pennsylvania. Borrekins v. Bevan, 3 Rawle, 23; see notes to Chandeler v. Lopus, 1 Smith's L. C. 7th Am. ed. 299 et seq. " It has always been held," said Dickinson, J., in a case in 1881 in Minnesota, McCormick v. Kelly, "that a general warranty should not be considered as applying to or giving a cause of action for defects known to the parties at the time of making the warranty, and both the weight of authority and reason authorize this proposition, namely, that for representations in the terms or form of a warranty of personal property no action will lie on account of defects actually known and understood by the purchaser at the time of the bargain. Margetson v. Wright, 7 Bing. 603; Dyer v. Hargrave, 10 Ves. Jr. 506; Schuyler v. Russ, 2 Caines, 202; Kenner v. Harding, 85 111. 264; Williams v. Ingram, 21 Tex. 300; Marshall v. Drawhorn, 27 Ga. 275; Shewalter v. Ford, 34 Miss. 417; Brown v. Bigelow, 10 Allen, 242; Story on Contr. sec 830; Benj. on Sales (2d. ed.), 502; Chitty on Contr. (11th Am. ed.) 644. A warranty for the breach of the condition of which an action ex contractu for damages can be maintained, must be a legal contract, and not a mere naked agreement. It must be a representation of something as a fact, upon which the purchaser relies and by which he is induced, to some extent, to make the purchase, or is influenced in respect to the price or consideration. Manuf. Society v. Lawrence, 4 Cow. 440; Lindsey v. Lindsey, 34 Miss. 432; Blythe v. Speake, 23 Tex. 429; Adams v. Johnson, 15 111. 345; Ender v. Scott, Defects open to inspection not warranted against.

But where there is an express warranty, a vendee is not bound to look for defects. He has a right, when these defects do not obviously appear, to rely on the warranty.1 - Where goods have been in the buyer's hands for some time before the sale, no warranty as to defects open to observation will be implied.2 - That in cases open to inspection, a fault, to be covered by an implied warranty, must be latent (vitium latens), is a settled rule of the Roman law,3 but unless the purchaser is an expert, it is enough that it should be of a character to escape the notice of ordinary observers, " talis tamen morbus sit, qui omnibus potuit apparere."* The purchaser is bound to exercise the care of a good business man of his class. "Ignorantia emtori prodest, quae non in supinum hominem cadit,"5 "non dissolutam ignorantiam emtoris excusari opor-tebit."6 A party cannot recover for a loss which his own negligence provokes; and as negligence of this class will be regarded an omission to look at obvious conditions in an article tendered for inspection. - If a physical defect is skilfully covered up by the vendor, the latter becomes liable in an action for deceit. If it is not covered up, then either the purchaser's negligence is to be chargeable with the loss, or he is to be regarded as having agreed to take the article as it is.7