unquestionably merchantable, or the defendant would not have bought. It would be unreasonable to require that he should have opened every one of the 110 barrels. He had a right to rely on the samples shown to him, and on the representations of the plaintiffs that the apples were good." Question 300: State the facts, the question presented and the Court's decision in this case. Case 301. Bierne v. Dord, 5 N. Y. 95. Facts: Bierne and Burnside bought of defendant, Dord, a quantity of French blankets. The blankets were wrapped up in bales, and the sale was made at New York in the warehouse at which the blankets were. Two or three pairs of the blankets were exhibited at the time and examined by the purchaser and found to be sound. Nothing was said by either of the parties about the condition of the other blankets, which could have been examined by the purchaser had he desired to inspect them. Defendant's clerk, who made the sale, testified on the trial that the blankets exhibited were taken promiscuously from the bales and that he supposed all of the blankets would correspond with them. Plaintiffs purchased twenty-seven bales which were put by plaintiffs' direction on board a vessel bound for New Orleans and paid for by plaintiffs. The blankets were in fact largely moth caten. The plaintiffs sue for damages, alleging breach of warranty and had judgment below. Defendant appeals. Point Involved: Whether the exhibition of the blankets under the circumstances and in the manner stated, made the sale a sale by sample. JEWETT, J.: As a general rule, it is well established, as well by our law as by the common law, that where there is neither fraud nor express warranty on the executed contract for the sale of a chattel, the buyer takes the risk of its quality and condition. "There is, however, an exception * * which al lows a warranty to be implied on a sale of goods by sample, that the article is, in bulk, of the same kind and equal in quality with the sample exhibited, in reference to which the parties contracted. When a contract for the sale of goods is made by sample it amounts to an undertaking on the part of the seller, with the purchaser, that all the goods are similar both in nature and quality to those exhibited. "But the mere circumstance that the seller exhibits a sample, at the time of the sale, will not of itself make a sale by sample, so as to subject the seller to liability on an implied warranty as to the nature and quality of the goods; because it may be exhibited, not as a warranty that the bulk corresponds to it, but merely to enable the purchaser to form a judgment on its kind and quality. If the contract be connected by the circumstances attending the sale, with the sample, and refer to it, and it be exhibited as the inducement to the contract, it may be a sale by sample; and then the consequences follows, that the seller warrants the bulk of the goods to correspond with the specimen exhibited as a sample. Whether a sale be a sale by sample is a question of fact for the jury to find from the evidence in each case; and to authorize a jury to find such a contract must be such as to authorize the jury * * the evidence * * to find that the sale was intended by the parties as a sale by sample. * * "That a personal examination of the bulk not practicable or convenient, furnishes no sufficient ground, of itself, to say that the sale is by sample (such) is doubtless a strong fact in reference to the question of the character of the sale, whether it was or was not made by sample. "New trial granted." * Question 301: (1) State the facts, the question presented and the Court's decision in this case. (2) How does this case differ in principle from the case immediately preceding it? (3) Suppose, in this case, the seller had called on the buyer with a French blanket and exhibited it as a sort of blanket he desired to sell to the purchaser, the other blanket not being present for inspection. Would there have been a sale by sample? § 337. (Sales, Sec. 50.) The implied warranty of fitness for purpose bought. Case 302. Marbury Lumber Co. v. Stearns Mfg. Co., 32 Ky. L. Rep. 739. Facts: The Stearns Mfg. Co. was engaged in the maufacture of locomotive engines. The Marbury Lumber Co. was engaged in the manufacture of lumber and had at its plant a railroad 17 miles long on which it hauled logs to the mill. Needing an engine to use for this purpose it ordered of the Stearns Co. an engine to do the work required, setting forth in the order the length of the road, gauge of the track, weight of rails, fuel used, weight of train, train mileage per day, number of cars to be hauled, steepest grade, etc. The Stearns Co. accepted the order and delivered an engine pursuant thereto, but it was found inadequate to do the work required of it and finally broke down. The Lumber Co. had given notice of the alleged defects and requested the seller to take back the engine. The engine company brings suit for the balance of the purchase price and defendant sets up its defense and a counter claim. Point Involved: Whether in a sale of property ordered by the buyer for a particular purpose known to the seller, there is an implied warranty that it is fit for that purpose. JUDGE HOBSON delivered the opinion of the Court: We think the case falls within the following rule as laid down by Benjamin on Sales, § 988; 'where a manufacturer or dealer contracts to supply an article which he manufactures or produces or in which he deals, to be applied to a particular purpose, so that the buyer necessarily trusts to the judgment or skill of the manufacturer or dealer, there is in that case an implied term of warranty that it shall be reasonably fit for the pur pose to which it is to be applied (citing authorities). In such a case the buyer trusts to the manufacturer or dealer, and relies upon his judgment and not upon his own.' It [the plaintiff] understood precisely what would be required of it and, knowing this, made the engine for the specific purpose for which it was used." * * Question 302: State the facts, the question presented and the Court's decision in this case. (2) A sold a heating plant to B, to be installed by A in B's house. A put in a heating plant that was well made, but would not heat B's house. B refused to accept the plant. A sues him. Can he recover? (Ideal Heat. Co. v. Kramer, 127 Ia. 137.) Case 303. Grand Ave. Hotel Co. v. Wharton, 79 Fed. 43. Facts: The Hotel Co. was a Missouri corporation, owning and conducting a hotel at Kansas City, Missouri. B was a manufacturer of boilers, of whom the Hotel Co. ordered two "Harrison Safety Boilers" of 150 horse power each. The order contained specifications of material and construction. The boilers were duly sent, well-made and of good material, and were set up for use. It was found that the boilers were not available to use with the water from the Missouri river on account of the sediment therein. The Hotel Company contended that as it was known for what particular purpose the boiler was to be used and that it was to be supplied with Missouri river water, there was a warranty that the boilers would be fit for that purpose. Point Involved: Whether there is an implied warranty of fitness for particular purpose, where the buyer orders a "known, described and definite" article, and gets what he ordered. LOCHREN, DISTRICT JUDGE, delivered the opinion of the Court: "1. Where a manufacturer contracts to supply an article which he manufactures to be applied to a particular use of which he is advised, so that the buyer neces sarily trusts to the judgment and skill of the manufacturer, there is an implied warranty that the article shall be reasonably fit for the use to which it is to be applied. (Citing cases.) "2. But when a known, described, and definite article is ordered of a manufacturer, although it be stated by the purchaser to be required for a particular use, yet if the known, described, and definite thing be actually supplied, there is no implied warranty that it shall answer the particular purpose intended by the buyer. (Citing cases.) * "3. Here the purchaser contracted for a definite, well-known kind of boiler, its president having then a boiler of the same kind in use. The specifications as to the size, form, material, and every detail were minute, and embodied in the contract. The manufacturers were obligated to deliver exactly such boilers as were described and contracted for, and could not, under the contract, deliver anything different. There is no claim that the boilers did not in every respect conform to this contract and specifications, nor any claim that they were defective, either in respect to workmanship or material. The purchaser did not exact a warranty that the boilers would operate with the muddy waters of the Missouri river, and therefore assumed that risk itself." Question 303: (1) What were the facts in this tion presented and the Court's decision? case, the ques (2) What is the difference between this case and the case immediately preceding? Why? (3) Do you think there were any implied warranties in this case? What? Case 304. Peoria, etc., Co. v. Turney, 175 Ill. 631. Point Involved: Whether there is an implied warranty of fitness for particular purpose where goods are ordered by trade name. MR. JUSTICE PHILLIPS delivered the opinion of the Court: ""* It is also urged that the words 'Reed |