5 Bull v. Robison, 10 Exch. 342; 28 Eng. Law & Eq. 586.
1 Jones v. Bright, 5 Bing. 533; 8. c. 1 Dan. & Lloyd, 304. See Brown v. Edgington, 2 M. & G. 279; Dickson v. Jordan, 11 Ire. 166; Burns v. Fletcher, 2 Carter, 372.
2 Gray v. Cox, 4 B. & C. 108. In this case the declaration alleged that the defendants undertook to supply copper sheathing of a sound, substantial, and serviceable quality. Lord Tenterden first held that as the defendant sold the copper to be applied to a specific use, there was an implied warranty that the copper was fit for such use. The question was, however, twice argued, upon motion for a new trial, and the court ultimately decided it on a question of pleading, that no allegation being set forth that the plaintiff knew of the use for which the copper was intended, and thereby warranted it to be fit for such use, the plaintiff was not entitled to recover.
3 See Pacific Iron Works v. Newhall, 34 Conn. 67 (1867). And the rule that where a buyer orders goods to be supplied, and trusts to the seller to select goods applicable for the purpose for which he knows they are ordered, there is an implied warranty that they should be reasonably fit for the purpose, applies to natural products - such as rape-seed - as well as to manufactured articles. Shiels v. Cannon, 16 Irish Com. Law, 588 (1865), an excellent case on this point, reviewing the authorities. As to a sale of " seed barley," see Carter v. Crick, 4 H. & N. 412 (1859).
§ 1075. But where an article of a certain and definite nature is to be manufactured to order, the seller, of course, can in no sense be considered as warranting it to be appropriate to the use to which the buyer intends to apply it, but only to be as fit as any similar article, complying with the order, can reasonably be expected to be. That is, the seller does not warrant the judgment of the buyer, in ordering such an article for such a use, but only the fitness of the article as far as its quality is concerned. Thus, where an article was ordered of the manufacturer, under the designation of "Chanter's smoke-consuming furnace," to be used in the defendant's brewery, and it was found not to be adapted to such a use, although it operated in its usual manner; there being no fraud, it was held that the seller could not be understood to warrant that the furnace was adapted to the use for which it was intended, inasmuch as it was a specific and definite article, and as good for the purpose as any answering the description in the order.3 But if the skill and was dangerous and unfit for the purpose for which it was sold; as where a gun was sold and burst in the plaintiff's hand, who was using the same.1 So a person who causes a building to be erected for viewing a public exhibition, to seats in which persons are admitted for money, impliedly warrants that due care has been exercised in the erection of the building, and that it is reasonably fit and safe for the purpose; and if a person is injured by a fall in the seats, the person erecting the building is liable, if it was improperly constructed, although not guilty of negligence, and although he employed a competent person to do the work.2 But a vendor of an article which is not in its nature imminently dangerous, such as a piece of machinery, is not liable to one injured through a defect therein, although the latter is using it with the consent of the purchaser.3
1 Bluett v. Osborne, 1 Stark. 384. In this case a bowsprit was sold, which was examined and was apparently sound, but which proved worthless and rotten. In the absence of fraud A. was entitled to recover of B. what the bowsprit was apparently worth at the time of delivery. Upon the sale of an article then present and subject to examination, no warranty of its quality or fitness for a particular use will be implied, though the seller is aware that the article is purchased specially for such use. Deming v. Foster, 42 N. H. 165 (1860).
2 Jones v. Just, Law R. 3 Q. B. 197 (1868).
3 Chanter v. Hopkins, 4 M. & W. 399. Upon the sale of a steam-engine with a cut-off known as "Green's Patent Cut-off," the law will infer a warranty that the defendant shall have the right to use the cut-off in judgment of the maker be relied upon, and he be requested to make a machine adapted to a particular purpose, the manufacturer would be bound to supply an article reasonably fit to accomplish such purpose.1 Thus, where the plaintiff was the patentee and manufacturer of a patent machine for printing two colors, and the defendant, having seen one of the machines on the plaintiff's premises, ordered one, the plaintiff undertaking by a written memorandum to make "a two-color printing machine on my patent principle," and in an action for the price the defendant excused himself from liability, on the ground that the machine had been found useless for printing in two colors, - it was held that if the machine described were a known and ascertained article, ordered by the defendant, he was liable, whether it answered his purpose or not; but that if it were not a known and ascertained article, and the defendant had merely ordered, and the plaintiff had agreed to supply a machine for printing two colors, the defendant was not liable, unless the instrument was reasonably fit for such purpose.2
§ 1076. But even where there is no warranty, express or implied, as to the fitness or safety of an article sold for a specific and known use, yet the vendor may be liable, under some circumstances, if guilty of negligence in making the article, or if he knew that it was dangerous and not fit for the purpose intended. Thus, where a chemist sold a hair wash of his own making, representing it to be fit for that purpose, but it was prepared so negligently and unskilfully as to injure the health of the purchaser using it, he was held liable for the consequences, although he did not know its effects.3 A fortiori he would be liable, if he knew that the article sold connection with the engine. Pacific Iron Works v. Newhall, 34 Conn. 67 (1867).