Morris v. Bradley Fertilizer Co.

• Decision Date: 01 November 1894
• Docket Number: 1.
• Citation: 64 F. 55
• Parties: MORRIS v. BRADLEY FERTILIZER CO.
• Court: U.S. Court of Appeals — Third Circuit

64 F. 55

MORRIS v. BRADLEY FERTILIZER CO.

No. 1.

United States Court of Appeals, Third Circuit.

November 1, 1894

C Berkley Taylor and Wm. H. Addicks, for plaintiff in error.

Leoni Melick, for defendant in error.

Before SHIRAS, Circuit Justice, and ACHESON and DALLAS, Circuit Judges.

DALLAS Circuit Judge.

'If a man buy an article for a particular purpose, made known to the seller at the time of the contract, and rely upon the skill or judgment of the seller to supply what is wanted there is an implied warranty that the thing sold will be fit for the desired purpose. ' Benj. Sales (2d Am. Ed.) Sec 661. Where, however, a positive and unqualified order for a specific article is given, this rule is not applicable. In such cases there is an implied condition, according to the English authorities, or, as substantially the same thing is usually called by our courts, an implied warranty, that the article supplied shall correspond with the designation description, or exemplar, as the case may be, by which the thing purchased had been defined. But the seller's undertaking does not extend beyond this guaranty of identity. There is no implied collateral agreement that the article sold is fit for the use for which the buyer designs it. He buys on his own judgment, and if that turns out to be at fault he must himself bear the burden of his disappointment. These principles are well settled and do not appear to be challenged, but it is contended that the circuit court erred in its application of them to the facts which were before it. The contract between these parties was for the purchase and sale of a 'Griffin mill,' and such a mill was delivered. The action in the court below was for recovery of the agreed price, and the defense was that the mill would not do the work for which it was wanted. The business of the defendant below was the grinding of limestone without first drying it. Consequently, he required a mill which would grind it when in a wet condition, and as the mill in question would not do this it was useless to him. Is the seller liable for the resultant loss? If he is, as fraud is not charged, and no express warranty is alleged, it must be by reason of the existence of an implied warranty of fitness, which, as we have seen, cannot exist unless it appears-- First, that the purpose for which the mill was bought was sufficiently made known to the seller; and, second, that his judgment as to its suitability for that purpose was relied upon. This brings us to the investigation of the evidence by which these points must be determined, and upon which we base our decision.

The defendant below testified that, about two years before he bought the mill, Mr. Griffin (acting, it may be assumed, for the plaintiff) gave him a catalogue in which it was stated, with regard to the Griffin mill: 'It will grind equally well substances as hard as flint and as soft as lime. * * * It will grind wet or dry.' But this catalogue was in evidence, and the defendant further testified that he had read it,-- 'read it over,'-- and it is made quite manifest by other passages which it contains that the statement as to grinding either wet or dry does not relate to the substances to be ground, but to alternative constructions or modes of operation of the machine itself. For instance, it is said, 'In wet grinding the water is introduced with the feed, and when the mill is running the water takes the same motion as the material in the dry mill,'etc. The statement of which the defendant below complains is therefore not a misleading one, if read-- as of course it should be-- in connection with other parts of the paper in which it occurs. If, however, this catalogue had plainly asserted that the Griffin mill would grind wet limestone, and if it had clearly appeared that the purchase was made with reference to that assertion, the defendant below would have proved too much, for the warranty shown, if any, would be an express, and not an implied, one; and the brief submitted on his behalf rightly concedes that the charge of the trial judge upon the subject of express warranties was unobjectionable. Moreover, the defendant below, though he may, as he testified, have thought, from his perusal of this catalogue, that the Griffin mill would answer his purpose, certainly did not, as will appear further on, rely upon its statements in giving his order of two years later. The correspondence which created the contract is set forth in the record as follows:

'(Business

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