Argument for Defendant in Error.

Mr. Frank Hagerman and Mr. Wallace Pratt for defendant in error.

I. For all the purposes of review in this court the facts as found and stated by the court below are conclusive. Rev. Stat. § 649; Boogher v. Ins. Co., 103 U. S. 90; Dickinson v. Planters' Bank, 16 Wall. 250; Town of Ohio v. Marcy, 18 Wall. 552; Saulet v. Shepherd, 4 Wall. 502; Copelin v. Ins. Co., 9 Wall. 461; Ins. Co. v. Folsom, 18 Wall. 237; Ins. Co. v. Sea, 21 Wall. 158; United States v. Dawson, 101 U. S. 569; Tyng v. Grinnell, 92 U. S. 467; Martinton v. Fairbanks, 112 U. S. 670; Fort Worth City Co. v. Smith Bridge Co., 151 U. S. 294.

II. No rulings having been made by the court below and excepted to upon objections to the admission or exclusion of evidence, the only question for review by this court is as to the sufficiency of the facts found to support the judgment. Rev. Stat. § 700; Boogher v. Ins. Co., 103 U. S. 90.

III. There was an implied warranty on the part of the plaintiff that the cars, when manufactured and applied to the use contemplated by defendant and understood by plaintiff at the time of making the contract, should be reasonably fit for that use.. Kellogg Bridge Co. v. Hamilton, 110 U. S. 108, and cases cited; Railroad Co. v. Smith, 21 Wall. 255; Reynolds v. Palmer, 21 Fed. Rep. 433; Craver v. Hornburg, 26 Kansas, 94; Curtis Mfg. Co. v. Williams, 48 Arkansas, 325; Rodgers v. Niles, 11 Ohio St. 48; S. C. 78 Am. Dec. 290; Best v. Flint, 58 Vermont, 543; Downing v. Dearborn, 77 Maine, 457; Brigg v. Hilton, 99 N. Y. 517; Hoult v. Baldwin, 67 California, 440, 610; Beals v. Olmstead, 24 Vermont, 114; S. C. 58 Am. Dec. 170; Correio v. Lynch, 65 California, 273.

IV. The provision in the contract for an inspection and acceptance of the cars at works of the plaintiff does not apply to defects discoverable only by actual use. (a) It is the only just and reasonable construction that can be given to the contract. (b) It is the construction placed upon the contract. by the parties themselves. Chicago v. Sheldon, 9 Wall. 50; Foster v. Goldschmidt, 21 Fed. Rep. 70.

V. Even if we are wrong in our construction of the contract,

Argument for Defendant in Error.

yet the fact that the contract provided for an inspection at the works does not exclude the implied warranty of the manufacturer if the defect was only discoverable by use on the Twelfth-Street line. Heilbutt v. Hickson, L. R. 7 C. P. 438; Bird v. Smith, L. R. 12 Q. B. 786; Craver v. Hornburg, 26 Kansas, 94; Kellogg Bridge Co. v. Hamilton, 110 U. S. 108; Boothby v. Scales, 27 Wisconsin, 626; Hudson v. Roos, 72 Michigan, 363; Gould v. Stein, 149 Mass. 570.

VI. The fact that the work was done under specifications does not exclude the idea of an implied warranty.

VII. For a breach of the implied warranty the defendant, within a reasonable time, could elect to rescind the contract. Craver v. Hornburg, 26 Kansas, 94; Weybrich v. Harris, 31 Kansas, 92; Branson v. Turner, 77 Missouri, 489; Howe Machine Co. v. Rosine, 87 Illinois, 105; Rogers v. Hanson, 35 Iowa, 283; Morse v. Brackett, 98 Mass. 205; Hyatt v. Boyle, 5 Gill. & Johns. 110; S. C. 25 Am. Dec. 276; Marston v. Knight, 29 Maine, 341; Dill v. O'Ferrell, 45 Indiana, 268; Butler v. Northumberland, 50 N. H. 33; Youghiogheny Iron Co. v. Smith, 66 Penn. St. 340; Jagers v. Guffin, 43 Mississippi, 134; Ralph v. Chicago & Northwestern Railway, 32 Wisconsin, 177; Curtis Mfg. Co. v. Williams, 48 Arkansas, 325; Hoult v. Baldwin, 67 California, 610; Polheumus v. Herman, 45 California, 573; Downing v. Dearborn, 77 Maine, 457; Correio v. Lynch, 65 California, 273; Mandel v. Buttles, 21 Minnesota, 391; Prickett v. McFadden, 8 Ill. App. 197; Matthews v. Fuller, 8 Ill. App. 529; Kent v. Bornstein, 12 Allen, 342; Culler v. Gilbreth, 53 Maine, 176; Jack v. R. R. Co., 53 Iowa, 399; National Bank & Loan Co. v. Dunn, 106 Indiana, 110; Warder v. Fisher, 48 Wisconsin, 338; Scranton v. Tilley, 16 Texas, 183; Pope v. Allis, 115 U. S. 363.

VIII. The non-compliance with a condition of a contract. will always authorize a rescission. Fogg v. Rodgers, 84 Kentucky, 558; Wolcott v. Mount, 36 N. J. Law, 262; Bagley v. Cleveland Rolling Mill Co., 21 Fed. Rep. 159; Norrington v. Wright, 115 U. S. 188; Filley v. Pope, 115 U. S. 213.

IX. Where an article is ordered from a manufacturer upon an executory contract, there is the implied warranty before

Opinion of the Court.

mentioned, and this is a condition of the contract which will warrant a rescission for a breach. Howard v. Hoey, 23 Wend. 350; S. C. 35 Am. Dec. 572; Voorhees v. Earl, 2 Hill, 288; S. C. 38 Am. Dec. 588; Muller v. Eno, 14 N. Y. 597; Street v. Blay, 2 B. & Ad. 456; Heilbutt v. Hickson, L. R. 7 C. P. 438; Parks v. Morris Tool Co., 54 N. Y. 586; Brigg v. Hilton, 99 N. Y. 517; Norton v. Dreyfuss, 106 N. Y. 90. The distinction as to an implied warranty by a manufacturer upon an executory contract is too refined to be clearly drawn. Bagley v. Cleveland Rolling Mill Co., 21 Fed. Rep. 159; Wolcott v. Mount, 36 N. J. Law, 262; Pope v. Allis, 115 U. S. 363.

X. The receipt of the cars does not prevent the return, whether considered as a rescission on account of the breach of the warranty, or a rejection on account of a breach of a condition. Norrington v. Wright, 115 U. S. 188; Craver v. Hornburg, 26 Kansas, 94; Branson v. Turner, 77 Missouri, 489; Boughton v. Standish, 48 Vermont, 594; Knoblauch v. Kronschnabel, 18 Minnesota, 300; Simpson v. Krumdick, 28 Minnesota, 352; Doane v. Dunham, 79 Illinois, 131; Hoult v. Baldwin, 67 California, 610; Curtis Mfg. Co. v. Williams, 48 Arkansas, 325; Dawes v. Peebles, 6 Fed. Rep. 856; Bryant v. Isburgh, 13 Gray, 607; S. C. 74 Am. Dec. 655. Especially is the right to rescind or reject not lost when the failure so to do comes from the assurances of the vendor. Courtney v. Boswell, 65 Missouri, 196; Day v. Pool, 52 N. Y. 416; Matthews v. Fuller, 8 Ill. App. 529.

XI. A mere offer to return is a sufficient rescission. Howard v. Hoey, 23 Wend. 350; S. C. 35 Am. Dec. 572; Grimoldby v. Wells, L. R. 10 C. P. 391; Curtis Mfg. Co. v. Williams, 48 Arkansas, 325; Matthews v. Fuller, 8 Ill. App. 529; Padden v. Marsh, 34 Iowa, 522. And the vendor will be put in statu quo if the chattel is returned injured, if not injured by the buyer's negligence. 2 Kent Com. 480, note (c).

MR. JUSTICE HARLAN, after stating the case as above reported, delivered the opinion of the court.

The facts found by the court below, as above detailed, bring this case within a very narrow compass, and render it unneces

Opinion of the Court.

sary to make an extended review of the very large number of adjudged cases, American and English, cited in argument.

The subject of implied warranty in sales of personal property was examined by this court in Kellogg Bridge Company v. Hamilton, 110 U. S. 108, 116, and, subsequently, in Seitz v. Brewers' Refrigerating Co., 141 U. S. 510, 518. In the first of those cases it was said that "when the seller is the maker or manufacturer of the thing sold, the fair presumption is that he understood the process of its manufacture, and was cognizant of any latent defect caused by such process, and against which reasonable diligence might have guarded. This presumption is justified, in part, by the fact that the manufacturer or maker, by his occupation, holds himself out as competent to make articles reasonably adapted to the purposes for which such or similar articles are designed. When, therefore, the buyer has no opportunity to inspect the article, or when, from the situation, inspection is impracticable or useless, it is unreasonable to suppose that he bought on his own judgment, or that he did not rely on the judgment of the seller as to latent defects of which the latter, if he used due care, must have been informed during the process of manufacture. If the buyer relied, and under the circumstances had reason to rely, on the judgment of the seller, who was the manufacturer or maker of the article, the law implies a warranty that it is reasonably fit for the use for which it was designed, the seller at the time being informed of the purpose to devote it to that use." This principle was reaffirmed in the other case above cited and it was there said: "But it is also the rule, as expressed in the text-books and sustained by authority, that where a known, described, and definite article is ordered of a manufacturer, although it is stated by the purchaser to be required for a particular purpose, still, if the known, described and definite article be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer."

These cases were much commented on in argument, and, for that reason, we have deemed it proper to indicate the principal ground upon which each was determined.

The present case has some features that were not in either

Opinion of the Court.

of the others. By the written contract between the parties the cars that the plaintiff agreed to construct were to be inspected and accepted at the works of the plaintiff, after which they were to be delivered by the plaintiff, free on board the cars, at Pullman Junction, Kensington, Illinois. After ten or twelve cars were completed, and were inspected at the works of the plaintiff by the superintendent of the defendant, the latter expressed himself satisfied with them, and requested the plaintiff to finish the others in the same way and forward them. Clearly, upon such inspection and acceptance, the title as to those cars passed to the defendant company. There is no claim that the remainder of the cars were not finished in the same manner as the first lot inspected by Lawless. As to these, the title certainly passed to the defendant when they were put on the cars at Pullman Junction to be forwarded, if it did not pass before and as each lot was completed under the order to make them like those that had been personally inspected and accepted at the works of the plaintiff. Halliday v. Hamilton, 11 Wall. 560, 564, and authorities cited; The Mary and Susan, 1 Wheat. 25, 35; Stack v. Inglis, 12 Q. B. D. 564.

To what extent was the defendant concluded by the actual inspection and acceptance of the first lot of cars, and of the acceptance, in advance of their completion, of the remaining cars when finished or constructed in the same way?

The court below found that the cars could not be operated successfully with the brakes that were put upon them by the plaintiff, and that this fact was not apparent nor discoverable upon any reasonable inspection at the place of manufacture, and could not be discovered until after a practical test upon the road.

The contention, therefore, of the defendant is that the plaintiff, having knowledge that the cars were to be used on the defendant's road, impliedly warranted that the brakes placed on them would be sufficient for the purposes for which they were designed. The plaintiff insists that the provision in the contract for inspection and acceptance of the cars at the place of manufacture is inconsistent with any idea of implied