dry, hard, and level road, the tiller-post, by which the guiding wheel was attached to the tongue, broke, and it could be moved no further. A telegram was immediately sent to the plaintiffs, notifying them of the break, and they at once sent forward a duplicate casting to take the place of the broken one. The new casting was put in place and another effort was made to haul the machine to the ranch, but before it had gone many feet the new casting also broke. The defendant then declined to accept the machine, and offered to return it to the plaintiffs and to pay the return freight thereon. This was the first machine which went out from the plaintiffs' shops during that year, and very soon after it was shipped an improvement was introduced and used upon all the other machines by which the tiller-post was strengthened. "It was made heavier; more metal was used in the plate or bottom part, and a stirrup or iron strap was put around it." The plaintiffs did not offer to furnish to the defendant the improved tillerpost, or notice in any way the fact that the machine had become disabled a second time. They waited four months without demanding pay for the machine, or making any suggestion about its use or return, and then commenced this action. In defense of the action the defendant set up a warranty of the machine, a breach of the warranty, and a prompt offer to return the machine to the plaintiffs after he discovered its insufficiency. The case was tried before a jury, and the verdict was in favor of the plaintiffs "for the full amount claimed, with interest." The defendant (appellant here) now insists that the verdict was not justified by the evidence, and that the court erred in giving certain instructions, and refusing to give other instructions, to the jury.

We think the motion for new trial should have been granted. It appears from the testimony in the case that on the very day the machine was ordered the defendant was notified of the fact of its being ordered, and that the plaintiffs proposed to deliver it upon the cars, and that their responsibility, so far as the working of the machine was concerned, should then be at an end; that the defendant was unwilling to accept it on those terms, and demanded a guaranty that it would do good work; that the plaintiffs at once acceded to the demand by executing and forwarding to the defendant a written guaranty that the machine would do good work in cutting and thrashing ordinary grain, standing from one to five feet in height.

When the defendant demanded the guaranty he added that he would be willing to pay expenses of a man to start the machine on his ranch and test the same. The plaintiffs in reply said: "We will send a man with the machine, you paying his expenses to your ranch and back. He will start the machine, and show to your satisfaction. that it is all that we have represented it to be." The machine was sent forward, but the plaintiffs did not send a man with it, nor did they send one after they were notified that it had broken.

It is claimed for the respondents that their guaranty was made

after the sale was complete, and that it was therefore without consideration and void, and that at any rate one of the conditions of the guaranty was that the man sent by the plaintiffs should start the machine, and, as defendant endeavored to start it without notifying them, they are entitled to recover in this action the price of it.

This position cannot be maintained. It is clear from the testimony that the guaranty was not made after the sale was complete, and it was not without consideration and void. It is also evident that when the plaintiffs promised to send a man to start the machine they meant to start it in the grain-field, and not from the railroad depot to the ranch. But if the respondents were right in their contention as to the written guaranty, still the Civil Code provides:

"Sec. 1769. One who sells, or agrees to sell, an article of his own manufacture thereby warrants it to be free from any latent defect, not disclosed to the buyer, arising from the process of manufacture, and also that neither he nor his agent in such manufacture has knowingly used improper materials therein."

"Sec. 1770. One who manufactures an article under an order for a particular purpose warrants by the sale that it is reasonably fit for that purpose."

The warranties provided in these sections are as broad at least as the written guaranty, and must be held to have attended and been conditions of the sale. Having taken the machine, then, under a warranty, whether it be that expressed in the writing, or provided by the Code, or both, the defendant had the right, if there was a breach of the warranty, that is, if in any respect the machine was not what it was warranted to be,-to rescind the sale by returning, or offering to return, it to the plaintiffs. Polhemus v. Heiman, 45 Cal. 573.

The principal questions for the jury were: Would the machine, as sent forward, do good work in cutting and threshing ordinary grain from one to five feet in height? Was it reasonably fit for the purpose for which it was ordered? Was there any latent defect arising from the process of manufacture not disclosed to the buyer? The theory of the plaintiffs at the trial was that their responsibility in respect to the machine ceased when it was placed on the cars at Stockton, and that they then became entitled to demand and receive the agreed price for it. This theory finds expression in instruction No. 1, given at the request of the plaintiffs, and in the modification of instruction No. 4, given at the request of the defendant. The theory, as we have seen, was wrong, and the court erred in giving the plaintiffs' instruction, and in refusing to give, without modification, that of defendant. The court also erred, we think, in striking off a part of instruction No. 1, and refusing to give instructions No. 9 and 10 asked by defendant.

As the case must be tried again, and be somewhat differently presented, we do not deem it necessary to speak particularly of the other instructions given and refused. The judgment and order should be reversed, and the cause remanded for a new trial.

We concur: SEARLS, C.; FOOTE, C.

BY THE COURT. For the reasons given in the foregoing opinion the judgment and order are reversed, and cause remanded for a new trial.

NOTE.

Warranty of Fitness-Latent Defects.

It has been said that as a general rule, in the sale or exchange of goods, a warranty as to quality is not implied in law, Reynolds v. Palmer, 21 Fed. Rep. 433; and that it is only where an article is manufactured under an order for a particular purpose that the manufacturer by the sale warrants that it is reasonably fit for that purpose. Correio v. Lynch, 3 Pac. Rep. 889. But where an article is manufactured or sold for a particular purpose, a warranty will be implied that it is reasonably fit for that purpose. Cosgrove v. Burnett, 20 N. W. Rep. 359. Thus it has been held in Pennsylvania that where a manufacturer of steel sells the same to a manufacturer of axes, there is an implied warranty that the steel is of the kind fit for axes. The court say: "If a thing be ordered of a manufacturer for a special purpose, and it be supplied and sold for that purpose, there is an implied warranty that it is fit for that purpose." Park v. Morris Axe Co., 4 Lans. 103. In New York, where a manufacturer of printers' ink, in making a purchase of a dealer in lamp-black, said that he wanted it for the purpose of making printers' ink, and that he had to be very particular as to the quality used, that the quality used for carriages would not do, it was held that there was an implied warranty that the black should be suitable for the manufacture of printers' ink. Murray v. Smith, 4 Daly, 277. And it was held in Gerst v. Jones, 32 Grat. 524, that where a manufacturer agrees to furnish boxes for a tobacco dealer to pack and ship tobacco in, there is an implied warranty that they are fit for that purpose. The court in that case say: "Neither the ignorance of the seller, nor the exercise of care and diligence on his part, can exempt him from liability where there is a warranty, whether it be express or implied." This is the English rule also. See Jones v. Bright, 5 Bing, 533; Gray v. Cox, 4 Barn. & C. 108; Randall v. Newson, 2 Q. B. Div. 102. But where the person purchases an article on his own judgment, then the rule of caveat emptor applies, Mamlock v. Fairbanks, 1 N. W. Rep. 167; Brown v. Edgington, 2 Man. & G. 279; Gerst v. Jones, 32 Grat. 521; and particularly where the vendor is not the manufacturer. Lindley v. Hunt, 22 Fed. Rep. 52. Yet when a vendor agreed to supply or manufacture for a vendee a chattel, without the vendee having an opportunity of examination, the law implies that the vendor undertook that it should reasonably answer the purpose for which it was intended by the parties, Dowes v. Peebles, 6 Fed. Rep, 856; but where the party has an opportunity to inspect the goods for himself, neglects to do so, and takes the goods at the estimates put upon them by the vendor, a different rule applies. Reynolds v. Palmer, 21 Fed. Rep. 433. Where a man bought a quantity of hay at defendant's barn, but did not examine it, saying at the time that he could not tell, but he wanted it to feed his oxen during the spring and summer, and the hay turned out to be worthless, it was held that there was an implied warranty that the hay was fit for the purpose for which sold. The court say: "The hay was bought for a particular use, and the defendant knew that the plaintiff would not buy an inferior article. The sale of the hay, then, for this particular use ordinarily implies a certainty that it is fit for this use." It has been questioned in Minnesota whether there is any implied warranty against latent defects, in case of an executed sale of finished articles inspected and selected by the purchaser, where the seller is manufacturer as well as dealer or merchant. Johnston Harvester Co. v. Clark, 17 N. W. Rep. 111. In New York it has been said, Hoe v. Sanborn, 21 N. Y. 552, that the implied warranty is restricted to such defects as grow out of the process of manufacture, and does not extend to defects in the material used. But in the case of Rodgers v. Niles, 11 Ohio St. 48, where the contract was to manufacture and furnish, for a specified price, three steam-boilers, to be used to run engines in mills, it was held to be an implied stipulation of the contract that the boilers should be free from all such defects of material and workmanship, whether latent or otherwise, as would render them unfit for the useful purposes of such boilers. See Street v. Chapman, 29 Ind. 142; Wilcox v. Owens, 64 Ga. 601; Gammell v. Gunby, 52 Ga. 504; Gerst v. Jones, 32 Grat. 518; Robson v. Miller, 12 S. C. 586; Merrill v. Nightingale, 39 Wis. 247; Taylor v. Cole, 111 Mass. 363; Wolcott v. Mount, 38 N. J. Law, 496; Hanger v. Evins, 38 Ark. 334; White v. Miller, 71 N. Y. 118; Van Wyck v. Allen, 69 N. Y. 61; Howard v. Hoey, 23 Wend. 350; Bigelow v. Boxall, 38 U. C. Q. B. 452; Baker v. Lyman, Id. 498; Snelgrove v. Bruce, 16 U. C. C. P. 561; Macfarlane v. Taylor, 1 Scotch & Div. App. Cas. 245; Smith v. Baker, 42 Law J. C. P. (N. S.) 155; Robertson v. Amazon Tug Co., 7 Q. B. Div. 598; Wilson v. Dunville, 4 Ir. R. 249.

(67 Cal. 635)

SWEENEY V. STANFORD. (No. 8,890.)

Filed October 31, 1885.

CONTRACTS BY PARTNERSHIP-FICTITIOUS FIRM NAME-CERTIFICATE OF PARTNER

SHIP.

In an action to enforce a partnership contract, on the part of the firm, the complaint is demurrable if it discloses the fact that the contract sought to be enforced was made by the partners in their fictitious name, unless it is alleged that the plaintiffs have filed the certificate of partnership required by the California statute, (Civil Code, §§ 2466, 2467;) and if such fact be alleged, the burden is on the plaintiffs to prove it. If the complaint does not contain such allegation, the defect, to avail the defendant, must be set up by him as a defense to the action. In either case the action abates only, and is not a bar to another action properly brought.

In bank. Appeal from superior court, city and county of San Francisco.

H. L. Brown and John E. Foulds, for appellant.

E. P. Cole, for respondent.

Ross, J. By statute in this state every partnership, except commercial and banking partnerships, established and transacting business in a place without the United States, transacting business in the state under a a fictitious name, or a designation not showing the names of the persons interested as partners in such business, is required to file with the clerk of the county in which its principal place of business is situated a certificate, signed by the partners and acknowledged before some officer authorized to take the acknowledgment of conveyances of real property, stating the names in full of all the members of such partnership and their places of residence, and publish the same once a week for four successive weeks in a newspaper published in the county, if there be one, and if there be none in such county, then in a newspaper published in an adjoining county. Civil Code, §§ 2466, 2467. By a subsequent section (2468) it is provided that "persons doing business as partners contrary to the provisions of this article shall not maintain any action upon or on account of any contracts made or transactions had in their partnership name in any court of this state until they have first filed the certificate and made the publication herein required." This is statute law, is very plain, and must be given effect.

The complaint in the present case shows that the plaintiffs are partners under a designation not showing the names of the persons interested as partners, and counts upon a contract made in their partnership name. The statute in terms declares that persons thus doing business shall not maintain an action upon such a contract unless they shall have filed the certificate required by the section cited. Manifestly, therefore, with the averments in respect to the partnership and the contract, the complaint would have been demurrable had it failed to have alleged compliance with the condition imposed by the statute as a prerequisite to the maintenance of the action. And being, under such circumstances, a necessary averment, it was,

of course, necessary for the plaintiffs to prove a substantial compliance with the condition, the allegation in that regard being denied in the answer. Fabian v. Callahan, 56 Cal. 161. Of course, where the complaint fails to disclose that the plaintiffs fall within the provisions of section 2466 of the Civil Code, to avail the defendant the failure to file the required certificate must be set up in the answer as a defense to the action. In either case the action would only abate, and would not be a bar to another action brought after compliance with the provisions of the statute. Byers v. Bourret, 64 Cal. 73.

It results from what has been said that, as there was a failure on the part of the plaintiffs to show a compliance with the statute in regard to the certificate of partnership, the court below should have granted the defendant's motion for judgment of nonsuit. Judgment and order reversed, and cause remanded for a new trial.

We concur: MCKINSTRY, J.; THORNTON, J.; MYRICK, J.; MCKEE, J.; MORRISON, C. J.

(67 Cal. 634)

GRANGERS' BUSINESS Ass'N OF CALIFORNIA v. CLARK. (No. 8,415.)

Filed October 31, 1885.

CORPORATION-ESTOPPEL BY DEALINGS WITH.

Parties dealing with a corporation are estopped by their contracts from setting up irregularities in the organization of the corporation, or want of power on its part to enter into the contracts.

Department 1. Appeal from superior court, city and county of San Francisco.

Mich. Mullany, for appellant.

A. W. Thompson, for respondent.

Ross, J. The plaintiff loaned the defendant a certain sum of money, in consideration of which defendant executed to the plaintiff his certain promissory note, together with a mortgage upon certain property, to secure its payment; and this action by the plaintiff to foreclose the mortgage is resisted by defendant upon the alleged grounds (1) of irregularities in the organization of the plaintiff corporation, and (2) of the want of power on plaintiff's part to enter into the contract. Upon established principles of equity, appellant's mouth is closed in respect to both points. Sedg. St. & Const. Law, 73; Bigelow, Estop. 424; Mor. Priv. Corp. § 100. Order affirmed.

We concur: MCKEE, J.; McKINSTRY, J.