the manufacturer or producer of it, and is accepted, there is an implied provision in the contract that the article delivered shall be genuine, and really made or produced by the seller, and no substitution is permitted, so that the purchaser is not bound to accept an article made or produced by a third person, even though it is equal in grade and quality to that which he expected to receive. Furthermore, the

manufacturer or producer of an article is supposed to have complete and intimate knowledge, not only of the process of its manufacture, but also of its merchantable quality and of its adaptability and serviceability with reference to any of the particular uses for which he offers to sell it. As to these matters, the purchaser does not stand upon an equality with him, and may fairly be presumed to rely upon the manufacturer's superior information. Therefore, in all such cases of purchase from the maker or producer, there is an implied warranty against any latent defects arising in the process of manufacture and not disclosed to the buyer, and also an implied warranty of adaptability, usefulness, and generally of quality, and upon discovering that the article does not correspond with this implied warranty, the purchaser may refuse to accept the article delivered, or return it, and repudiate and rescind the contract.85

§ 190. Property Purchased for Specified Use.-If an article is purchased for a specific and particular use, and that fact and the nature of the proposed use are made known to the seller at the time, there is an implied undertaking on his part that the article shall be fit and serviceable for such use, and if it is not so, the buyer may rescind

84 Boston Ice Co. v. Potter, 123 Mass. 28, 25 Am. Rep. 9; Johnson v. Raylton, 7 Q. B. Div. 438; Boulton v. Jones, 2 Hurl. & N. 564.

85 Kellogg Bridge Co. v. Hamilton, 110 U. S. 116, 3 Sup. Ct. 542, 28 L. Ed. 86; Joslyn v. Cadillac Automobile Co., 177 Fed. 863, 101 C. C. A. 77; Watson v. Brown, 113 Iowa, 308, 85 N. W. 28; Hoult v. Baldwin, 67 Cal. 610, 8 Pac. 440; Hoe v. Sanborn, 21 N. Y. 552, 78 Am. Dec. 163; Jones v. Bright, 3 Moore & P. 174; Brown v. Edgington, 2 Man. & G. 279; Laing v. Fidgeon, 4 Camp. 169; Shepherd v. Pybus, 3 Man. & G. 868; Randall v. Newson, 2 Q. B. Div. 102. Compare Worcester Mfg. Co. v. Waterbury Brass Co., 73 Conn. 554, 48 Atl. 422.

the contract and return the article.86 "It appears to be a distinction well founded both on reason and on authority," says an English judge, "that if a party purchases an article upon his own judgment, he cannot afterwards hold the vendor responsible, on the ground that the article turns out to be unfit for the purpose for which it was required; but if he relies upon the judgment of the seller, and informs him of the use to which the article is to be applied, it seems to me the transaction carries with it an implied warranty that the thing furnished shall be fit and proper for the purpose for which it was designed." 87 Thus, in an action for the purchase price of certain type-setting machines sold to the defendant, where the plaintiff represented that the machines would not break the type, and were suitable and valuable for setting up type, upon which representations the defendant relied, if in fact the machines were defective for the purpose for which they were bought, defendant will be entitled to rescind the contract, even in the absence of express representations of quality and value.88 So the right of one who has purchased boilers to rescind the contract, after they have been delivered and set up, because they are not of the capacity guarantied, extends to an iron smokestack furnished under the same contract, and which is a part of the boiler plant and adapted especially for boilers of that manufacture. On the same principle, it is said that the adaptability of land, which is the subject of sale, for a site for an irrigating pumping plant differs from its availability for such purpose; for its adaptability is neutralized by nonavailability, growing out of the fact that it is cut off from the water supply by the lands of others, so that adaptability counts for nothing in determining the value in a proceeding for relief against the contract.9° This rule is

80 Wernli v. Collins, 87 Iowa, 548, 54 N. W. 365; Mundt v. Simpkins, 81 Neb. 1, 115 N. W. 325, 129 Am. St. Rep. 670; Byers v. Chapin, 28 Ohio St. 300; Southern Gas & Gasoline Engine Co. v. Peveto (Tex. Civ. App.) 150 S. W. 279; Paige v. McMillan, 41 Wis. 337; Boothby v. Scales, 27 Wis. 626.

87 Brown v. Edgington, 2 Man. & G. 289.

88 Walker, Evans & Cogswell Co. v. Ayer, 80 S. C. 292, 61 S. E. 577. 89 Smith v. York Mfg. Co., 58 N. J. Law, 242, 33 Atl. 244.

90 Smart v. Bibbins, 109 La. 986, 34 South. 49.

not inapplicable where the sale is made by sample. One who purchases, by sample, a chattel intended for a particular purpose, known to the seller, may rescind the sale, even after acceptance of it, on discovering a latent defect.o1

But the implied warranty of the seller extends no further than the description which is given to him of the intended use of the article. If only a general description of the proposed use is given, he cannot be responsible for unsuitability of the article in respect to details not disclosed. Thus, one who buys a second-hand printing press, saying merely that he wants one to print a seven-column quarto newspaper, and not being able to charge any fraud or misrepresentation on the seller, and who gets a press which will do the work described, cannot rescind because it will not print the blank sides of "patent insides" and match the margins.92 Further, the purchaser of an article seeking to rescind the contract of sale, on the ground of the unfitness of the article for the use for which it was sold, where it is his duty to expend labor and skill in order to render the article fit for that use, impliedly warrants that the ultimate unfitness of the article is not occasioned by any fault of his own.93 And it is also a part of his duty, before attempting to rescind, to put the article to the test of actual use or experiment, in order to determine whether it really is fit or unfit." Where a contract for a building or other structure gives the owner the right to supervise and inspect the work as it progresses by his representative, with power to approve or reject material or workmanship, after the building or structure has been completed and the owner has the use of it, he cannot rescind the contract and refuse to pay the contract price on the ground of defects in material or workmanship which were approved by his representative. And if the purchaser of an article, finding it unsuitable for its intended use,

95

91 Hudson v. Roos, 72 Mich. 363, 40 N. W. 467.

92 Grabill v. Barnhart Bros. & Spindler, 160 Mich. 81, 125 N. W. 16.

93 Byers v. Chapin, 28 Ohio St. 300.

94 Lawrence v. Dale, 3 Johns. Ch. (N. Y.) 23.

95 Town of Packwaukee v. American Bridge Co., 183 Fed. 359, 105 C. C. A. 579.

sues the seller for damages, this amounts to a waiver of his right to rescind.9

If one who has undertaken to furnish a machine or a plant according to a contract and for a specified use, makes changes in the designs agreed on, or substitutes constituent parts differing from those specified in the contract, he does so at his own risk, and will be liable to lose the entire contract if such change or substitution results in making the work as a whole unsuitable for its intended purpose." On the other hand, where a change of design is ordered by the purchaser of machinery, if it amounts to a different undertaking from the original one, the manufacturer may recover the reasonable value of his product, without regard to the contract price; but if the change does not amount to a new undertaking, he can recover only the contract price, so far as such price is applicable, together with a quantum meruit for extra labor and material necessitated by the change.9s

§ 191. Same; Warranty of Fitness for Prescribed Use. A sale of personalty with a warranty of fitness for a prescribed use or of adaptability for a particular service may be treated as a sale on condition subsequent, at the election of the purchaser, and, on breach of the warranty, the property may be restored and the sale rescinded." Thus, for example, where an agricultural implement is warranted to do good work, and it is found on trial that it will not answer the purpose for which it was sold, the purchaser may rescind the contract of purchase.100 And in this case, where a thing is warranted as fit for a special purpose, it is not

96 El Campo Ice, Light & Water Co. v. Texas Machinery & Supply Co. (Tex. Civ. App.) 147 S. W. 338.

97 Mt. Vernon Refrigerating Co. v. Fred W. Wolf Co., 188 Fed. 164, 110 C. C. A. 200.

98 Moran Bros. Co. v. Snoqualmie Falls Power Co., 29 Wash. 292, 69 Pac. 759.

99 Mundt v. Simpkins, 81 Neb. 1, 115 N. W. 325, 129 Am. St. Rep. 670; Sherrill v. Coad, 92 Neb. 406, 138 N. W. 567; McCormick Harvesting Mach. Co. v. Knoll, 57 Neb. 790, 78 N. W. 394; Luitweiler Pumping Engine Co. v. Ukiah Water & Improvement Co., 16 Cal. App. 198, 116 Pac. 707, 712; International Harvester Co. v. Porter, 160 Ky. 509, 169 S. W. 993.

100 Gale Sulky Harrow Mfg. Co. v. Stark, 45 Kan. 606, 26 Pac. 8, 23 Am. St. Rep. 739.

necessary to show any fraud on the part of the seller in order to justify a rescission.101

§ 192. Sale with Privilege of Return if not Satisfied.When a contract of sale reserves to the buyer the privilege of returning the article and annulling the sale if he is not "satisfied" with it, there has been much difference of opinion as to whether or not his mere declaration that he is dissatisfied will justify a rescission. According to one theory, such a clause in the contract gives the buyer the arbitrary and unrestricted right to reject the article, without assigning any reasons for his dissatisfaction or showing that it is at all reasonable or well-founded.102 And though the reservation of a right to rescind in such manner or on such grounds is not very usual, yet it is not at all illegal.103 According to another theory, the buyer cannot reject the article out of mere caprice or willfullness, but must have reasonable grounds for his dissatisfaction; or, in other words, if any reasonable and sensible person would have been satisfied with the article, the buyer cannot assert that he is not satisfied.104

Primarily, the question is one of construction, the object being to ascertain what the parties really intended at the time of making the contract. If the attending circumstances throw any light on this point, they must be taken into consideration, and may be decisive of the question. Thus, in a case in Michigan, it was said: "The cases where the parties provide that the promisor is to be satisfied, or to that effect, are of two classes, and whether the particular case at any time falls within the one or the other must depend upon the special circumstances, and the question must be one of construction. In the one class, the right of decision is completely reserved to the promisor, and without being liable to disclose reasons or account for his course,

101 Allen v. Hass, 27 Ohio Cir. Ct. R. 727.

102 Coombs v. Glass, 5 B. Mon. (Ky.) 11; Taylor v. Trustees of Poor of Newcastle County, 1 Pennewill (Del.) 555, 43 Atl. 613. And see other cases cited in this section.

103 Smalley v. Hendrickson, 29 N. J. Law, 371.

104 Union League Club v. Blymyer Ice Mach. Co.,

204 Ill. 117, 68

N. E. 409; Clark v. Kelly (Iowa) 109 N. W. 292. And see cases cited, infra, this section.