Sec 904

The receiver is not necessarily bound to return goods which do not answer the vendor's description. In cases where there is not absolute incongruity between the thing described and the thing delivered, he may say, "I keep the goods, and sue you for the damage arising from the misdescription." And this rule applies when there is an assertion that an article is fitted physically for a particular purpose, and it is bought for this purpose. This amounts to a warranty;6 though it is otherwise when the article is sold to effect an end not susceptible of physical measurement, and in itself conjectural - e. g. a specific sold as a means of recovering health. And when an article is sold, not to effect a particular physical purpose, which the vendor warrants it can effect, but merely as having certain characteristics - e. g. as being the "patent smoke consuming furnace" of a certain inventor - there is no warranty implied that it will exhibit these characteristics in successful action.1 And where the purchaser gets what he orders, but neglects to take a warranty as to fitness for use, he is supposed to act with his eyes open, and cannot fall back on an implied warranty;2 and so when he buys on his own inspection.3

Or vendor may be sued on warranty.

1 Supra, sec 219 et seq.

2 Supra, sec 189.

3 Supra, sec 4, 177, 214, 221.

4 Supra, sec 178; and see supra, sec 559 et seq.; Benj. on Sales, 3d Am. ed. sec 600; Chanter V. Hopkins, 4 M. & W. 399; Henshaw V. Robins, 9 Met. 83; Mansfield V. Trigg, 113 Mass. 350; Hawkins V. Pemberton, 51 N. Y. 198; Dounce V. Dow, 57 N. Y. 21. An agreement that wheat to be delivered shall be "good milling wheat," is a warranty of quality; Jack V. R. R., 53 Iowa, 399; supra, sec 219.

5 Supra, sec 189.

6 Supra, sec 263; Benj. on Sales, 3d Am. ed. sec 656; Leake, 2d ed. 404; Brown V. Edginton, 2 M. & G. 279; Randall V. Newson, L. R. 2 Q. B. D. 102; Laing V. Fidgeon, 6 Taunt. 108; Shepherd V. Pybus, 3 M. & G. 868; Dennett V. Short, 7 Greenl. 150; Mansfield V. Trigg, 113 Mass. 350; White V. Miller, 71 N. Y. 118; Gallagher V. Waring, 9 Wend. 20; Boyd V. Wilson, 83 Penn. St. 319; Wolcott V. Mount, 36 N. J. L. 262; 38 N. J. L. 496; Lord V. Grow, 39 Penn. St. 88; Mc-Clung V. Kelly, 21 Iowa, 508; Chicago Packing Co. V. Tilton, 87 Ill. 547.

Sec 905

An implied warranty is held to exist that an article made or supplied to the order of the purchaser is reasonably fit for the purpose for which it is ordinarily used, or that it is fit for the special purpose intended by the purchaser, if that purpose be communicated to the vendor when the order is given.4 In 1868, in a case already cited,5 it was ruled that where an article is sold for a particular purpose, so that the buyer necessarily trusts to the judgment or skill of the vendor, there "is an implied term of warranty that it shall be reasonably fit for the purpose to which it is to be applied."1 It was further held that "where a manufacturer undertakes to supply goods manufactured by himself, or in which he deals, but which the vendee has not had the opportunity of inspecting, it is an implied term in the contract that he shall supply a merchantable article."2 The merchant who undertakes to fill an order for an article of a particular kind, to answer a particular purpose, stands in this respect on the same footing as the manufacturer. If the article does not correspond to the order, the merchant ought not to deliver it.3

Article supplied to order is warranted to answer order.

1 Benj. on Sales, 3d Am. ed, sec 656-7; Chanter V. Hopkins, 4 M. & W. 399; Ollivant V. Bayley, 5 Q. B. 288; Deming V. Foster, 42 N. H. 165; Pease V. Sabin, 38 Vt. 432; Tilton Safe Co. V. Tisdale, 48 Vt. 83; Pacific Iron Works V. Newhall, 34 Conn. 67; Port Carbon Co. V. Groves, 68 Penn. St. 149; Rod-gers V. Niles, 11 Oh. St. 48; Gerst V. Jones, 32 Grat. 518; see supra, sec 263. The rule as stated by Mr. Benjamin, Sales, 3d Am. ed. sec 656, is that "in a sale of goods by description, where the buyer has not inspected the goods, there is, in addition to the condition precedent that the goods shall answer the description, an implied warranty that they shall be salable and merchantable." To this is cited Gardiner V. Gray, 4 Camp. 144; Jones V. Bright, 5 Bing. 533.

2 Dounce V. Dow, 64 N. Y. 411.

3 Supra, sec 227; infra, sec 907; Burney V. Bollett, 16 M. & W. 644; Emmerton V. Matthews, 7 H. & N. 586; Ward V. Hobbs, 2 Q. B. D. 338; Deming V. Foster, 42 N. H. 165; and see supra, sec 196, 245, 289, 572, 753.

4 Supra, sec 221; Benj. on Sales, 3d Am. ed. sec 645, citing in note by American editor, Rodgers V. Niles, 11 Oh. St. 48; Byers V. Chapin, 28 Oh. St. 300; see, also, Beels V. Olmstead, 24 Vt. 114; Hastings V. Lovering, 2 Pick. 214; Moses V. Mead, 1 Denio, 378; White V. Miller, 71 N. Y. 118; Brenton V. Davis, 8 Blackf. 317; Babcock V. Trice, 18 Ill. 420.

5 Jones V. Just, L. R. 3 Q. B. 197.

1 To this is cited Brown V. Edgington, 2 M. & G. 279; Jones V. Bright, 5 Bing. 533; and to the same effect see cases in prior section, and Randall V. Newson, L. R. 2 Q. B. D. 102, cited supra, sec 223.

2 To this is cited Laing V. Fidgeon, 4 Camp. 169; 6 Taunt. 108. Judge Bennett, in a note, refers in addition to Brown V. Sayles, 27 Vt. 227; Pease V. Sabin, 38 Vt. 432; Harris V. Waite, 51 Vt. 480; Gaylord Man. Co. V. Allen, 53 N. Y. 515; Gallagher V. Waring, 9 Wend. 20; Rodgers V. Niles, 11 Oh. St. 48; Howie V. Rea, 70 N. C. 559; Mann V. Everston, 32 Ind. 355; see, also, cases cited supra, sec 223. For qualifications see Hight V. Bacon, 126 Mass. 10. To same effect see Howard V. Hoey, 23 Wend. 350; Moses V. Mead, 1 Denio, 378.

3 Pacific Iron Works V. Newhall, 34 Conn. 67. Whether a donor (Geschenk-geber) is liable for warranty (Gewahrs-leistung) is a moot question in the Roman law, the agitation of which dates as far back as Azo. (Glossa ad L. 1, C. de jure dot. et ad L. 18, sec 3, D. de donat.) Azo maintains that there is a warranty only in cases where expressly promised. This opinion, according to Koch (sec 121), was dominant until the time of Duaren (1557), who maintained that warranty may be implied in all cases of donation. This doctrine was sustained by the most eminent jurists of the sixteenth and seventeenth centuries. That when a gift is a pure act of bounty, and in no sense based on reciprocity, there can be no warranty implied, has been maintained by high authorities, among whom Koch enumerates Struve, Lauterbach, Stryk, Wes-tenberg, and Wachtler.

In Johnson V. Raylton, 45 L. T. N. S. 374, L. R. 7 Q. B. D. 438, cited supra, sec 221, it was held that where goods are from a manufacturer it is an implied element in the contract that the goods supplied shall be of his own manufacture. It was further held that the implication may be rebutted by evidence of a contrary practice in a particular trade. On this case the London Law Times comments as follows: "In spite of this great difference in the result, not only both courts, but also all the judges in both courts, agree up to a certain point. They agree that if a contract is made with a manufacturer of goods, to whose name or skill a peculiar value attaches, to supply those goods, he is bound to supply them of his own manufacture, even though there be no express agreement to that effect in the contract. For instance, if a man order a picture from the president of the Royal Academy, champagne from Moot and Chandon, or a piano from Broadwood, he is entitled to be supplied with an article of the manuwarranty by the vendor that the article is fitted for the use to which the purchaser intended to apply it, although the vendor might have supposed what was the intended use.1