mined, and said lease rescinded, and defend-party to, nor was he in any way benefited by, ants surrendered possession of all the premises, and plaintiff went into possession thereof; that the plaintiff himself elected to rescind and work a forfeiture of said lease, and notified defendants to pay the accruing rent in advance, or to surrender possession of the premises, and did consummate and execute said rescission, and did take possession of said premises; that at the time of the commencement of this action said the contract of assignment. The liability of Porter to the lessor was, therefore, created solely by the covenant of the lease to pay the rent, which is a covenant running with the land, and not by the contract of assignment, the nonperformance of which is enforceable only by the lessee. The assignee is answerable for the rent during his ownership of the term under the assignment, and his liability there lease set forth in the complaint was fully re- | fore arises out of the privity of estate, and this scinded, determined, and cancelled, and no cause of action existed for the enforcement of its convenants. The court denied the motion, and the defendant Porter excepted." The case was tried by a jury, and a verdict found in favor of the plaintiff, and from the judgment rendered thereon this appeal is taken by the defendant Porter upon the judgment role alone. The only error complained of relates to the ruling of the court denying the motion of the defendant Porter for judgment of nonsuit. Porter's covenant, contained in the assignment to him, "to pay all rent that may fall due from time to time by virtue of the provision of the lease," and his entry into possession as assignee under the assignment, created the relation of landlord and tenant between him and the lessor, and his holding was by privity of estate, and not by privity of contract, as claimed by respondent. The lessor was not a without reference to any obligation assumed by him in the contract of assignment. Nordid the assignment to Porter and the acceptance by the lessor of him as tenant release Pierce from his covenant to pay the rent, but his liability to the lessor continues, notwithstanding the assignment by privity of contract, to the end of the term of the lease, unless sooner terminated. The evidence shows that Porter, shortly before the installment of rent sued for became due, abandoned possession of the premises, and refused to pay the rent, upon the pretext that the plaintiff had failed to furnish, as he agreed to do, the consent of his lessor to the assignment. This, of course, was a mere subterfuge. The contention that by the abandonment of the possession of the premises by Porter he parted with the beneficial interest, and yielded the possession to the beneficial owner, is unsupported by reason or authority. The legal preparing it, the assignment is sufficiently com- | assignment to a third person and the acceptance plete to release the original assignee. Odell v. Wake, 3 Campb. 394. Retention of possession by the assignee after assignment is not alone sufficient to establish the invalidity of the assignment and render the assignee liable for the rent thereafter accruing. Tate v. McCormick, 23 Hun, 218. In 1 Vent. 329, there is a case (Knight v. Peady & Freeman) in which the court held that if the assignment was made for the purpose of defrauding the lessor that fact might be pleaded to nullify the effect of the assignment. (30 Car. II.) Equity will give relief to the landlord where the assignment is merely colorable and fictitious the possession remaining with the assignor, and where there is a real assignment which has been made for the purpose of depriving the landlord of legal remedies for rent due previous to the assignment. Onslow v. Corrie, 2 Madd. 330; Treackle v. Coke, 1 Vern. 165; London v. Richmond, 2 Vern. 421; Philpot v. Hoare, 2 Atk. 219. of the latter by the lessor as tenant will not discharge the original assignee from his liability upon his covenants to his assignor. Port v. Jackson, 17 Johns. 239, affirmed, 17 Johns. 479. An assignee who takes from the lessee leasehold premises by indenture indorsed on the lease "subject to the rent reserved in the lease," is liable in covenant to the lessee for rent, which the latter is compelled to pay to the lessor after the assignee has assigned over. Steward v. Wolveridge, 9 Bing. 60. A lessee being sued for rent may prosecute a cross-action against his assignee to compel him to discharge the land and release him from responsibility. Trabue v. McAdams, 8 Bush, 74. Where the assignee signed and delivered to the lessee an instrument by which he undertook to pay rent at the time specified in the lease, he became liable to pay all rent which accrued on the lease for the entire term. Martineau v. Steele, 14 Wis. 272. The covenant of a lessee to pay rent binds his assignee for the rent due after the assignment, and Liability after assignment for rent accruing during an action of debt can be maintained against him term. The assignee is liable to an action of covenant for a breach of covenant running with the land incurred in his own time though the action is not commenced until after he has assigned. Harley v. King, 2 Cromp. M. & R. 18; Quackenboss v. Clarke, 12 Wend. 557; Brolasky v. Furey, 12 Phila. 428; Sutliff v. Atwood, 15 Ohio St. 197. On the other hand, it has been held that a suit at law cannot be maintained against the assignee after he has assigned over for the rent falling due subsequent to the assignment to him and before the assignment over; the remedy is in equity alone. Hintze v. Thomas, 7 Md. 346; Donelson v. Polk, 64 Md. 501, following Fagg v. Dobie, 3 Younge & C. 96. Remedies of lessee against assignee. Where the assignee covenants under seal with his assignor to perform all covenants of the lease, his by the assignor. McCormick v. Young, 2 Dana, 294. Where the lessee executed an agreement, not under seal, to assign the residue of his interest to a stranger, who entered and occupied the farm, but was never recognized as tenant by the lessor, the lessee, upon being compelled to pay the rent accruing after the assignee's abandonment of possession, cannot recover the same from the assignee. Crouch v. Tregoning, L. R. 7 Exch. 88. Form of remedy. In Journeay v. Brackley, 1 Hilt. 451, Daly, J., says that in virtue of the privity of the estate the assignee was always chargeable in an action of debt at the suit of the lessor for the rent which became due while the privity of estate continued, and if the demise was by a deed and contained a covenant by the lessee to pay the rent, the lessor might, by the Statute of 32 Hen. VIII., chap. 34, left to the jury. The only error assigned, as we have stated, was the refusal of the court to grant the motion for a nonsuit, As the case was one which had to be submitted to the jury on the evidence, if defendants desired to limit the recovery in any event to the amount of rent which had accrued at the time of the re-entry, it was their duty to ask the court to submit to the jury proper instructions upon that matter. Upon the record before us no error can be predicated. We therefore recommend that the judgment appealed from be affirmed. title and the possession of the leasehold were | least which had accrued up to the time of the in Treat and Porter, and he (Porter) could only re-entry, and the sufficiency of it was properly devest himself thereof and dissolve the privity of estate by a reassignment in writing to the lessee, or by assignment of his interest to another, accompanied by surrender of possession, or by the working of forfeiture of the lease for breach of its covenants, and re-entry for such breach, as provided for by the terms thereof. The surrender of the premises by Treat was conditional, and the condition was never fulfilled, nor was it in writing, as required by the Statute of Frauds; therefore such surrender did not operate as a dissolution of the tenancy. As the tenancy was only terminated by the lessor's notice to quit or pay the rent, and re-entry of possession under the right reserved by the lease for breach of its covenants, the motion for judgment of nonsuit was properly denied, for the reason that there was evidence tending to show the liability of appellant for that part of the rent at I concur: Vanclief, C. Per Curiam: For the reasons given in the foregoing opinion the judgment appealed from is affirmed. Re-hearing denied. sue upon the covenant, and further states that in The assignee is liable in an action of debt. HowNew York the distinction between debt and cov-land v. Coffin, 9 Pick. 52: McDowell v. Hendrix, 67 enant no longer exists, but the ground of action is Ind. 518. the general liability of the assignee if he accepts the assignment. Privity of estate alone would not sustain the action of covenant without the aid of Statute 32 Hen. VIII. Sutliff v. Atwood, 15 Ohio St. 192. But since that Act covenant has usually been recognized as a proper remedy. Palmer v. Edwards, reported as a note to Holford v. Hatch, 1 Dougl. 183; Keeling v. Morrice, 12 Mod. 371 (12 Wm. III.); Donelson v. Polk, 64 Md. 504; Lee v. Payne, 4 Mich. 118; Pingry v. Watkins, 17 Vt. 379. In Brewster v. Kitchell, 1 Salk. 198, Holt, Ch. J., ventures the opinion that covenant will not lie against one merely as assignee of the land, but in this he was opposed by the other three judges on the bench. When the duty of paying rent arose out of the privity of estate without privity of contract, the cause of action was local at common law. Patten v. Deshon, 1 Gray, 326. It is not so under the Vermont statutes. University of Vermont v. Joslyn, 21 Vt. 52. Since the covenant to pay rent runs with the land (Hannen v. Ewalt, 18 Pa. 19; Allen v. Culver, 3 Denio, 290; Post v. Kearney, 2 N. Y. 394), an action for breach of the covenants of the lease will lie against the assignee. Salisbury v. Shirley, 66 Cal. 225. Upon covenants in an indenture of lease, the lessor may have an action of covenant or debt against the assignee of the lease at common law, but the action is founded on privity of estate and is local. It will not lie where, by proof rebutting the presumption arising from possession, it appears that there has been no assignment under seal of the lease. Bowdre v. Hampton, 6 Rich. L. 208. The action of covenant does not lie without some privity of contract, but debt or distress lies on mere privity of estate. Adams v. French, 2 N. H. 387. In case of a demise in fee reserving rent the grantor, in the event of nonpayment, may bring covenant to recover the rent itself, either against his lessee or the latter's assignee, or he may bring ejectment to recover possession for nonpayment of rent. Main v. Davis, 32 Barb. 461. The goods of the assignee are liable to the landlord's distress, although they have been removed from the premises before any rent becomes due. Acker v. Witherell, 4 Hill, 112. Use and occupation. To entitle the landlord to maintain an action for use and occupation the relation of landlord and tenant must have existed. De Pere Co. v. Reynen, 65 Wis. 271; Lankford v. Green, 52 Ala. 103; Richmond & L. T. Road Co. v. Rogers, 7 Bush, 532; Moore v. Harvey, 51 Vt. 297; Hall v. Southmayd, 15 Barb. 32; Richey v. Hinde, 6 Ohio, 371; Wiggin v. Wiggın, 6 N. H. 298. But the contract may be implied. Brolasky v. Ferguson, 48 Pa. 434; Stewart v. Fitch, 31 N. J. L. 17; Edmonson v. Kite, 43 Mo. 176; Dalton v. Laudahn, 30 Mich. 349; Nance v. Alexander, 49 Ind. 516; Espy v. Fenton, 5 Or. 423; Marquette, H. & O. R. Co. v. Harlow, 37 Mich. 554; Pierce v. Pierce, 25 Barb. 243; Henwood v. Cheeseman, 3 Serg. & R. 500. There must be proof of some circumstances authorizing the inference that the parties intended to assume the relation of landlord and tenant towards each other. Preston v. Hawley, 2 Cent. Rep. 762, 101 N. Y. 588. Occupation by the tenant with the assent of the landlord is indispensable to the maintenance of the action. Central Mills v. Hart, 124 Mass. 125. Where the entry is peaceable and the occupation acquiesced in without any agreement as to rent the owner may bring an action for the use and occupation. Dell v. Gardner, 25 Ark. 134. 14 L. R. A. H. P. F. OREGON SUPREME COURT. 3. In the sales of goods or chattels by description, when the buyer has not inspected the goods, there is, in addition to the condition precedent that the goods or chattels shall answer the description, an implied war ranty that they shall be fit for the particular pur pose to which they are to be applied, when that purpose is known to the vendor. 4. When a dealer undertakes to supply goods or chattels in which he deals that are to be applied to a particular purpose, and the buyer necessarily trusts to the judgment of the dealer, there is an implied warranty that they shall be reasonably fit for the purpose for which they are intended. A (November 17, 1891.) PPEAL by defendant from a judgment of the Circuit Court for Multnomah County in favor of plaintiff in an action brought to recover damages for breach of warranty in the sale of certain cattle. Affirmed. The case sufficiently appears in the opinion. Messrs. Gilbert & Snow for appellant. Mr. Glenn O. Holman, for respondent: When defendant undertook to fill the order the law implied a warranty that the cattle should be of a kind suitable for the purpose for which they were ordered. Muller v. Eno, 14 N. Y. 597; Getty v. Rountree, 2 Pinn. 379, 54 Am. Dec. 138; Voorhees v. Earl, 2 Hill, 288, 38 Am. Dec. 588; Howard v. Hoey, 23 Wend. 350, 35 Am. Dec. 572; Rust v. Eckler, 41 N. Y. 488; Chapin v. Dobson, 78 N. Y. 82, 34 Am. Rep. 512; Door v. Fisher, 1 Cush. 271; Hyatt v. Boyle, 5 Gill & J. 121, 25 Am. Dec. 276; Day v. Pool, 52 N. Y. 418, 11 Am. Rep. 719; Benjamin, Sales, §§ 893–897. Lord, J., delivered the opinion of the court: This was an action brought by the plaintiff against the defendant to recover damages for a breach of an implied warranty in the sale of a lot of cattle. The contract consisted of an or der contained in a letter directing the defendant to "get two car-loads of good beef cattle," and to "consign them to Centralia," and "to draw on Wooding & Co. for the amount." The cattle not being of the quality ordered, or fit for the purpose intended, the defendant was notified upon their delivery, but, refusing to take any action in the premises, this action was brought, which resulted in a verdict and judgment for the plaintiff. The contention for the defendant is that, upon the facts of the transaction, there was no implied warranty that the cattle shipped upon the order were good beef cattle, and fit for the purpose intended, as asserted by the charge of the court. There can be no doubt but that the general rule of law is that, upon the sale of any article of merchandise, the seller does not become responsible for the quality of the article sold, unless he expressly warranted the quality, or made some false and fraudulent representation in regard to it. "No principle of the common law," said Mr. Justice Davis, "has been better established, or more often affirmed, both in this country and in England, than that the sales of personal property, in the absence of an express warranty, where the buyer has an opportunity to inspect the goods, and the seller is guilty of no fraud, and is neither the manufacturer nor grower of the article he sells, the maxim caveat emptor applies." This maxim, under the exceptions and limitations which the law has fastened upon it, furnishes a just and equitable rule for the transaction of business. It proceeds upon the hypothesis that, where the purchaser has had an opportunity of inspecting the goods or chattels, and their defects could have been discovered by him, he is bound to exercise his judgment, and take all reasonable precautions to protect his interest. In cases of this sort, where the purchaser has had the opportunity of inspecting and selecting the goods or chattels, the presumption is that he relies upon his own judgment, and takes upon himself the risk of their answering his purpose; otherwise he would have secured himself against loss by requiring an express warranty of them. But when the purchaser has not had an equal opportunity of inspecting such goods or chattels with the seller, or, under the circumstances, he has been compelled to rely upon his judgment, the maxim can have no application, and an implied warranty of their quality, or of their on a sale by description that a note on the subject being marketable, or of their fitness for the purpose intended, when such purpose is known Hargous v. Stone, 5 N. Y. 73. In a contract of sale words of description are held to constitute a warranty that the articles so sold are of the species and quality so de scribed. Hogins v. Plympton, 11 Pick. 100; Winsor v. Lombard, 18 Pick. 60; Henshaw v. Robins, 9 Met. 87, 43 Am. Dec. 367; Osgood v. Lewis, 2 Harr. & G. 495, 18 Am. Dec. 317; Borrekins v. Bevan, 3 Rawle, 23, 23 Am. Dec. 85; Lamb v. Crafts, 12 Met. 355; Bradford v. Manly, 13 Mass. 139, 7 Am. Dec. 122; Buchanan v. Beck, 15 Or. 570; Wolcott v. Mount, 36 N. J. L. 262, 13 Am. Rep. 438; Hawkins v. Pemberton, 51 N. Y. 204, 10 Am. Rep. 595. The selling upon a demand for a horse with particular qualities is an affirmation that he possesses those qualities. Passinger v. Thorburn, 34 N. Y. 636, 90 Am. Dec. 753. See also White v. Miller, 71 N. Y. 129, 27 Am. Rep. 13; Benjamin, Sales, § 656. The vendee may retain the property after notice to vendor and sue on the warranty. *Head notes by LORD, J. NOTE. The opinion in this case so fully reviews the authorities on the question of implied warranty will not be desired. to the seller, is raised or recognized in his be half. It is where the facts fall within the principle of exceptions of this sort that the reason of the maxim falls, and an implied warranty of the goods sold is recognized in favor of the buyer. When, then, the question is whether or not, in a given case, an implied warranty exists, it can only be determined by a full consideration of all the facts. The evidence shows that the plaintiff was a butcher, and that he used beef cattle for retail in his market; that he gave an order to the defendant for two carloads of "good beef cattle," who accepted it, and selected and shipped the cattle to the place designated; that the plaintiff paid for the cattle before delivery by draft drawn on him by the defendant; that the plaintiff was not present to inspect the cattle, nor had any opportunity to examine them until their arrival; that the defendant knew what the business of plaintiff was, and the purpose for which he wanted good beef cattle; that the cattle were not good beef cattle, or beef cattle, but only stock cattle, and not fit for the purpose intended; that as soon as plaintiff saw the cattle he notified the defendant of their not being the quality and kind of cattle he ordered, and unfit for his business purposes, but at the same time made a proposition as to part of them, which the defendant refused to accept, claim ing that the cattle shipped fully complied with the order. The relation which the defendant as seller, and the plaintiff as buyer, bear to these acts, when analyzed, is that the defendant undertook to supply cattle of the description ordered, knowing the particular purpose for which they were to be used, with full opportunity of inspecting them, and discovering their defects, or of ascertaining that they were not beef cattle, and fit for the particular purpose for which they were ordered; that the plaintiff was not present to inspect them, nor did he know, or have any opportunity of knowing, their defects, or ascertaining that they were not beef cattle, and not fit for the purpose for which they were intended, until after the cattle were delivered and paid for. In applying the law to this state of facts, the trial court asserted, in effect, by its charge, that there was an implied warranty on the part of the defendant that the cattle should be of the quality or answer the description ordered, and when so ordered, for a particular purpose, known to the defendant, that it, by undertaking to furnish the cattle, impliedly undertook that they should be reasonably fit for the purpose for which they were intended. The principle is stated that, where goods are sold by description or particular designation, there is always an implied condition that the article or goods delivered shall correspond strictly with that description or designation. This is regarded by some of the authorities, especially in the United States, as an implied warranty that the article sold is of that description, and by others as a condition precedent. But the facts in this case obviate the consideration of that aspect of the question. The defendant had received the full consideration for the cattle and consequently the contract had become in part executed when the cattle were delivered, and repudiation by the plaintiff of the contract, for non-compliance with its terms in not furnishing good beef cattle, had become impossible. The language of Depue, J., in Wolcott v. Mount, 36 N. J. L. 262, 13 Am. Rep. 438, goes to this point: "The right to repudiate the purchase," he says, "for non-conformity of the article delivered to the description under which it was sold, is universally conceded. That right is founded on the engagement of the vendor by such description, that the article delivered shall correspond with the description. The obligation rests upon the contract. Substantially the description is warranted. It will comport with sound legal principles to treat such engagements as conditions in order to afford the purchaser a more enlarged remedy by rescission than he would have on a simple warranty; but when his situation has been changed, and the remedy by repudiation has become impossible, no reason supported by principle can be adduced why he should not have upon his contract such redress as is practical under the circumstances. In that situation of affairs, the only available means of redress is a legal action for damages. Whether the action shall be technically considered an action on a warranty or an action for the nonperformance of a contract is entirely immaterial." Reversing the order, he further says: "But in a number of instances it has been held that statements descriptive of the subject matter, if intended as a substantive part of the contract, will be regarded in the first instance as conditions, on the failure of which the other party may repudiate in toto, by a refusal to accept or return the article, if that be practicable; or if a part of the consideration has been received, and rescission has become impossible, such representations change their character as conditions, and become warranties, for the breach of which an action will lie to recover damages." As has been suggested, strictly speaking, the conditions do not become warranties, but, the sale having become consummated, the same facts which before constituted conditions precedent now constitute warranties. That is our case. The description of the article sold ceases to be a condition, but becomes a warranty, rendering the authorities holding the doctrine that the sale of a chattel, as being of a particular description, implies a warranty that the article is of that description, in point, in support of the principle asserted in the instructions. In Winsor v. Lombard, 18 Pick. 60, Shaw, Ch. J., said: "Every person who sells goods of a certain denomination or description undertakes, as a part of his contract, that the thing delivered corresponds to the description, and is in fact an article of the kind, species, and quality thus expressed in the contract of sale; the rule being that, upon a sale of goods by a written memorandum or bill of parcels, the vendor undertakes, in the nature of warranting, that the thing sold and delivered is that which is described. This rule applies whether the description be more or less particular and exact in enumerating the qualities of the goods sold," In White v. Miller, 71 N. Y. 129, 27 Am. Rep. 13, Andrews, J., said: "The doctrine that the bargain and sale of a chattel of a particular description imports a contract or warranty that the article sold is of that description, is sustained by a great mass of authority." So in Wolcott v. Mount, supra, Depue, J., said: "The doctrine that on the sale of a chattel as being of a particular kind or description, a contract is implied that the article is of that kind or description, is also sustained by the following English cases: Powell v. Horton, 2 Bing. N. C. 668; Barr v. Gibson, 3 Mees. & W. 390; Chanter v. Hopkins, 4 Mees. & W. 399; Nichol v. Godts, 10 Exch. 191; Gompertz v. Bartlett, 2 El. & Bl. 849." In Foos v. Sabin, 84 III. 564, the contract of sale was for 'fat cattle," to be shipped for delivery at a future day; and the court held, where a contract is to sell "fat cattle," to be shipped for the market at a future day, he will be bound to pasture them so that they will, atthe time agreed on for delivery, be in a suitable condition for sale as "fat cattle" in the market. While, therefore, in the sale of an existing chattel, the law does not, in the absence of fraud, imply a warranty of the quality or condition, yet where the sale is of a chattel, as being of a particular description, it does imply a warranty that the article sold is of that description. See also Hogins v. Plympton, 11 Pick. 97; Bradford v. Manly, 13 Mass. 139, 7 Am. Dec. 122; Hyatt v. Boyle, 5 Gill & J. 110, 25 Am. Dec. 276; Bunnel v. Whitlaw, 14 U. C. Q. B. 241. There is however, where an article is sold by description, besides the condition or warranty, as it may be classed, an implied warranty, that the article sold shall be marketable under the terms of the description, or reasonably fit for the purpose for which it was intended. "In some contracts," said Brett, L. J. "the undertaking of the seller is said to be only that the article shall be merchantable; in others that it shall be reasonably fit for the purpose to which it is to be applied. In In all, al it seems to us, it is either assumed or expressly stated that the fundamental undertaking is that the article offered or delivered shall answer the description of it contained in the contract. That rule comprises all others. They are adaptions of it to particular kinds of contracts of purchase and sale." Randall v. Newson, L. R. 2 Q. B. Div. 102. In Jones v. Just, L. R. 3 Q. B. 197, a leading case, it was decided under a contract to supply goods of a specified description, which the buyer has no opportunity of inspecting, the goods must not only in fact answer the specific description, but must be salable or merchantable under that description. "If a man," said Best, Ch. J., in Jones v. Bright, 5 Bing. 533, "sells an article, he thereby warrants that it is merchantable; that is, fit for some purpose. If he sells it for a particular purpose, he thereby warrants it fit for that purpose." If the contract is to supply a certain kind and quality of chattels for a particular purpose known to the seller, which the buyer has no opportunity to examine before delivery, there is usually an implied warranty that the chattels supplied shall be reasonably fit for the special purpose intended by the buyer. 2 Benjamin, Sales, § 645. "Where the purchas er," said Staples, J., "does not designate any specific article, but orders goods of a par ticular quality, or for a particular purpose, and that purpose is known to the seller, the presumption is the purchaser relies upon the judgment of the seller, and the latter, by un dertaking to furnish the goods, impliedly undertakes they shall be reasonably fit for the purpose for which they were intended." Gerst v. Jones, 32 Gratt. 521, 34 Am. Rep. 773. Likewise in Best v. Flint, 58 Vt. 543, 2 New Eng. Rep. 604, 56 Am. Rep. 570, it was held that there is an implied warranty in the sale of hogs purchased for the market that they are fit for that purpose, when the vendee, having no opportunity of inspection, trusts to the judgment of the vendor to select them, and both parties understand for what they are intended. See also Beals v. Olmstead, 24 Vt. 114, 58 Am. Dec. 150; Street v. Chapman, 29 Ind. 142; Howard v. Hoey, 23 Wend. 350, 35 Am. Dec. 572; Hanger v. Evins, 38 Ark. 334; Gammell v. Gunby, 52 Ga. 504. While this rule applies with particular force where the vendors are the manufacturers, it is not limited to them, but is extended to cases where one merchant or dealer contracts to supply goods of a specific description to another merchant or dealer. Jones v. Just, supra; Lewis v. Rountree, 78 N. C. 323; Hanks v. McKee, 2 Litt. 227, 13 Am. Dec. 265; Ketchum v. Wells, 19 Wis. 34; Whitaker v. McCormick, 6 Mo. App. 114; Flint v. Lyon, 4 Cal. 17; Chicago Packing & P. Co. v. Tilton, 87 111. 547; Messenger v. Pratt, 3 Lans. 234. Nor is it material whether the goods or chattels are to be made or supplied to order. There is always an implied warranty that they are reasonably fit or suitable for the particular use intended by the purchaser, provided the use or purpose to which they are to be applied is known to the seller when the order was given. "Where a buyer," says Cockburn, J., "buys a specific article, the maxim caveat emptor applies; but where the buyer orders goods which shall be applicable for the purpose for which they are ordered, there is an implied warranty that they shall be reasonably fit for that purpose." Bigge v. Parkinson, 7 Hurlst. & N. *955. So that when a dealer undertakes by contract to supply goods or chattels in which he deals that are to be used, or are intended, for a particular purpose, and the purchaser necessarily, under the circumstances, trusts to his judgment, there is an implied warranty that they shall be reasonably fit for the use or purpose to which they are to be applied. The plaintiff had no opportunity to inspect the cattle, but the defendant undertook to select and supply them. Knowing the purpose for which he wanted them, and that no other than beef cattle would be fit for that purpose. The defendant could not have undertaken to supply the cattle on any other supposition than that they were salable as beef cattle, and fit for the purpose to which they were to be applied. Necessarily, then, the defendant had knowledge and information in the premises, and the plaintiff must have relied upon his judgment to fill the order, as he clearly could exercise no judgment of his own. As Mr. Justice Mellor said: "This appears to us to be at the root of the doctrine of implied warranty, and in this view it makes no difference whether the sale is of goods specially appropriated to a particular contract, or to goods answering to a particular description." Jones: v. Just, supra. We do not think, upon the facts as disclosed by this record, there was any error in the instructions excepted to. This re |