Davis Calyx Drill Co. v. Mallory

• Decision Date: 11 April 1905
• Docket Number: 2,132.
• Parties: DAVIS CALYX DRILL CO. v. MALLORY et al.
• Court: U.S. Court of Appeals — Eighth Circuit

137 F. 332

DAVIS CALYX DRILL CO. v. MALLORY et al.

No. 2,132.

United States Court of Appeals, Eighth Circuit.

April 11, 1905

Syllabus by the Court

An implied warranty that an article will be fit for a particular purpose may be inferred from a contract to make or furnish it to accomplish that specific purpose, because the accomplishment of the purpose is the essence of this contract.

But no implied warranty of such fitness arises out of a contract to make or supply a described and definite article, although the vendor knows that the vendee is purchasing it to accomplish the specific purpose, because the essence of this contract is the delivery of the specific article, and not the accomplishment of the purpose.

A vendee contracted with a manufacturer, in writing, to buy and pay for one class F3 drill made by the latter, and described in its catalogue, and certain other specific machinery and tools, for an agreed price. Before this contract was made the vendee informed the vendor that he wanted the drill and machinery to bore holds through certain described strata in land in the county of Lucas, in the state of Iowa, and the manufacturer assured him that its class F3 drill would do this work as rapidly and economically as a diamond drill. But the written contract was silent upon this subject. The vendor relied upon this assurance of the manufacturer, and made the contract. Held, there was no implied warranty that the drill and its machinery would be suitable to bore holes through the specific described strata in Lucas county, Iowa.

When the written agreement of the parties is complete in itself the conclusive legal presumption is that it embodies the entire engagement of the parties, and the manner and extent of their obligations, and parol evidence of other terms relating to the same subject-matter is inadmissable to extend, modify, or contradict it.

An implied warranty of the fitness of a machine to do a particular work does not include a warranty that it will do the work as rapidly or economically as some other specified machine. Such a covenant can be introduced by express contract only, and parol evidence of it is excluded by a written contract of sale which is silent on the subject.

Joseph C. Mitchell and Francis M. Hunter, for plaintiff in error.

Washington I. Babb and Theodore M. Stuart, for defendants in error.

On June 25, 1902, the Davis Calyx Drill Company, a corporation, made a written contract with S. H. Mallory to furnish him free on board the cars at Tarrytown, in the state of New York, one class F3 drill, which is described in its catalogue, and certain specific machinery, tools, and articles, for which Mallory promised to pay $2,459. Mallory has since died, and the defendants are the executrices of his will. The Calyx Company made and delivered the drill, the machinery, and the articles according to the contract, and this is an action to recover their purchase price. Two defenses were interposed--fraudulent misrepresentation and the breach of an implied warranty by the plaintiff. The court withdrew the former defense, and submitted the latter to the jury. There was evidence which had a tendency to establish these facts The plaintiff was a corporation engaged in the manufacture of drills and other machinery at Tarrytown, in the state of New York. Mallory was engaged in prospecting for coal in lands in Lucas county, in the state of Iowa, and William Haven was his agent. Haven had used a diamond drill for this purpose prior to June, 1901, but he objected to it because it would frequently fail to produce any core, for the reason that the coal was soft, and the diameter of the core was only one inch. He was desirous of obtaining a drill which would produce a larger core. He heard of the Davis Calyx drill procured one of the plaintiff's catalogues, went to Tarrytown, and saw one of the plaintiff's drills in operation with a shot bit; but he could not form any opinion upon the question whether or not it was fit to work in the strata in earth in Lucas county, in the state of Iowa. The drill was provided with a cutter and a shot bit, and these were exchanged in the operation to accommodate the drill to the hardness of the material through which it was to pass. Haven met the secretary and the general manager of the plaintiff. He described to them the strata through which a drill must pass in boring holes upon the land of Mr. Mallory, and explained to them that he desired to get a machine which would produce a larger core than a diamond drill, and would operate as economically and rapidly. They told him that their machine was just the drill he wanted. They showed him pieces of stone through which it had passed, and stated to him that it would sink 25 or 30 feet per day; that it will operate as economically and as rapidly as a diamond drill, and would get a larger core. Thereupon Haven made the contract in suit on behalf of his principal, Mallory, in reliance upon these representations, and upon the judgment of the officers of the plaintiff, express in this way. The plaintiff furnished the drill and all the other specific machinery, tools, and articles described in the contract, and furnished an expert to get up and operate the drill. But the machine would not work satisfactorily. It would sink only 8 or 10 feet per day on the average, while a diamond drill would bore into the same ground at the rate of 25 feet per day. The plaintiff claimed that these facts evidenced an implied warranty that the drill would be fit and suitable to bore holds through the strata in Lucas county, Iowa, underneath his land, as rapidly and economically as a diamond drill. All the testimony relative to this alleged warranty was received over the objections of the plaintiff, and was contradicted by testimony which it produced. The court instructed the jury, in effect, that if Haven correctly described to the secretary and general manager of the plaintiff the strata through which the drill was to be sunk under the land of Mallory, and if the secretary and general manager knew where the drill was to be used, and stated that it would do as much work there, and do it as economically, as a diamond drill, then the plaintiff had made an implied warranty that the drill would work in this way, and that, if it did not do so, the defendants had a right to rescind the contract, to return the drill, and to recover the expenses which they or their decedent had incurred in the attempt to operate it. The plaintiff excepted to this portion of the charge, and to the introduction of the evidence relative to the alleged warranty, and there was a verdict for the defendants.

Before SANBORN, Circuit Judge, and PHILIPS and RINER, District Judges.

SANBORN Circuit Judge, after stating the case as above, .

An implied warranty that an article will be fit for a particular purpose may be inferred from a contract to make or supply it to accomplish that purpose, because the accomplishment of the purpose is the essence of the undertaking. But no such warranty arises out of a contract to make or supply a specific, described, or definite article, although the manufacturer or dealer knows that the vendee buys it to accomplish a specific purpose, because the essence of this contract is the furnishing of the specific article, and not the accomplishment of the purpose. In other words, a warranty that a machine tool, or article sold is fit and suitable to accomplish a particular purpose or to do a specific work may be implied when the manufacturer or dealer knows the purpose or work to be effected, and the purchase of the machine, tool, or article is in reality an employment of the vendor to do the work by making or furnishing a machine, tool, or article to effect it. Kellogg Bridge Co. v. Hamilton, 110 U.S. 108, 116, 3 Sup.Ct. 537, 28 L.Ed. 86; Breen v. Moran, 51 Minn. 525, 53 N.W. 755; Leopold v. Van Kirk, 27 Wis. 152, 156; Brenton v. Davis, 8 Blackf. (Ind.) 318, 44 Am.Dec. 769; Omaha Coal, etc., Co. v. Fay, 37 Neb. 68, 75, 55 N.W. 211; Lee v. Sickles Saddlery Co., 38 Mo.App. 201, 205; Rodgers & Co. v. Niles & Co., 11 Ohio St. 53, 57, 78, Am.Dec. 290; White v. Adams, 77 Iowa, 295, 297, 43 N.W. 199.

But no implied warranty that a machine, tool or article is suitable to accomplish a particular purpose or to do a specific work arises where the vendor orders of the manufacturer, or purchases of the dealer, a specific, described, or definite machine, tool, or article, although the vendor knows the purpose or work which the purchaser intends to accomplish with it, and assures him that it will effect it. Such an assurance is but the expression of an opinion, when it is followed by a written contract, complete in itself, which is silent upon the subject. The extent of the implied warranty in such a case is that the machine, tool, or article shall correspond with the description or exemplar, and that it shall be suitable to perform the ordinary work which the described machine is made to do. Seitz v. Brewers' Refrigerating Co., 141 U.S. 510, 518-519, 12 Sup.Ct. 46, 35 L.Ed. 837; Keates v. Cadogan, 2 E.L.& E. 320, 10 C.B. 591; Grand Ave. Hotel Co. v. Wharton, 24 C.C.A. 441, 443, 79 F. 43, 45; Morris v. Bradley Fertilizer Co., 64 F. 55, 56, 12 C.C.A. 34, 35; Leake on Contracts (4th Ed.) 261, 262; 1 Parsons on Contracts, 586, 587; Union Selling Co. v. Jones, 128 F. 672, 675, 677, 63 C.C.A. 224, 227, 229; McCray Refrigerating, etc., Co. v. Woods, 99 Mich. 269, 58 N.W. 320, 321, 41 Am.St.Rep. 599; Cosgrove v. Bennett, 32 Minn. 371, 20 N.W. 360; Goulds v. Brophy, 42 Minn. 109, 43 N.W. 834, 6 L.R.A. 392; Wisconsin Red Pressed Brick Co. v. Hood, 54 Minn. 545, 56 N.W. 165; Fairbanks, Morse & Co. v. Baskett (Mo. App.) 71 S.W. 1113; Wheaton Roller Mill Co. v. John T. Noye Mfg. Co., 66...