Sec 906

This is a fortiori the case where the purchaser relies on the skill or judgment of the vendor as an assurance that the thing sold will answer the desired purpose; it being understood that confidence is given and received.1 - As has been already seen, selling by a merchant implies merchantability.2

Sec 907

It is otherwise when the purchaser buys on his own judgment. In such cases the maxim caveat emptor applies. The purchaser, such is the understanding of both parties, relies on his own inspection, and not upon any assurances of the vendor.3 Thus where a purchaser inspects personally a specific article sold, and the seller, who is not the manufacturer, makes no warranty, and is guilty of no. fraud, and the intended use of the article is not communicated at the time to the vendor, there is no implied facture of that man, or those firms; and that the proposition is equally true whether the article is already in existence, or has to be made. Where, however, the conflict of judicial opinion commences, is with regard to articles to which no such peculiar value can be said to attach, articles of which one maker's make is as good as another's, and which have no special repute or name, or other distinction. With regard to these the majority of the Scottish judges and Lord Justice Bramwell are of opinion that there is no agreement by the seller, though a manufacturer, that the goods shall be of his own make; whereas, the majority of the court of appeal and Lord Young (of the Scotch court) are of a contrary opinion." In the Alb. L. J. of NoV. 26, 1881, the following, in the same connection, is cited from the opinion of the court, in Chicago Packing and Provision Co. V. Tilton, 87 Ill. 555, a pork case: "It is plain, however, that a party dealing with a corporation, engaged in business as a manufacturer, and in selling its manufactured goods, and whose name gives no suggestion to the contrary, has a right to assume, when it offers such goods for sale with nothing to suggest the contrary, that it proposes to sell as a manufacturer, and not as an ordinary dealer in the market, and unless the proof shows satisfactorily that plain notice of its acting in a different character was brought home to the party dealing with such corporation, it cannot insist npon being treated as other than a manufacturer."

And so when vendor is specially trusted.

Otherwise when purchaser buys on his own judgment.

1 Supra, sec 221 et seq.; Benj. on Sales, 3d Am. ed. sec 661, citing Randall V. Newson, L. R. 2 Q. B. D. 102; Bigge V. Parkinson, 7 H. & N. 955; Macfar-lane V. Taylor, L. R. 1 Sc. Ap. 245; Beals V. Olmstead, 24 Vt. 114; Brown V. Sayles, 27 Vt. 227; Cunningham V. Hall, 4 Allen, 273; Dutton V. Gerrish, 9 Cush. 89; Rice V. Forsythe, 41 Md. 389; Gammell V. Gumby, 52 Ga. 504. That a fiduciary relation makes a full disclosure incumbent, see supra, sec 254.

2 Supra, sec 223.

3 Supra, sec 227, 245; Chanter V. Hopkins, 4 M. & W. 399; Azemar V. Casella, L. R. 2 C. P. 677; and cases cited supra, sec 227.