strata through which the drill was to be sunk under the land of Mallory, and if the secretary and general manager knew where the drill was to be used, and stated that it would do as much work there, and do it as economically, as a diamond drill, then the plaintiff had made an implied warranty that the drill would work in this way, and that, if it did not do so, the defendants had a right to rescind the contract, to return the drill, and to recover the expenses which they or their decedent had incurred in their attempt to operate it. The plaintiff excepted to this portion of the charge, and to the introduction of the evidence relative to the alleged warranty, and there was a verdict for the defendants.

Argued before Sanborn, Circuit Judge, and Philips and Riner, District Judges.

Messrs. Joseph C. Mitchell and Francis M. Hunter, for plaintiff in error: Where there is a written contract of sale, complete in itself, which contains no warranty, and no fraud, accident, or mistake is alleged, it is not competent for the purchaser, by allegation and proof, to show a parol warranty of the quality of the property. If the writing amounts to a contract of sale, and contains no warranty, parol evidence is not admissible to add a warranty thereto. Mast v. Pearce, 58 Iowa, 579, 43 Am. Rep. 125, 8 N. W. 632, 12 N. W. 597; Seitz v. Brewers' Refrigerating Mach. Co. 141 U. S. 510, 35 L. ed. 837, 12 Sup. Ct. Rep. 46; DeWitt v. Berry, 134 U. S. 306, 33 L. ed. 896, 10 Sup. Ct. Rep. 536; Warbasse v. Card, 74 Iowa, 306, 37 N. W. 383, Brintnall v. Briggs, 87 Iowa, 538, 54 N. W. 531.

Where "the article ordered was to be of a particular design or pattern, well defined and understood between the parties, and the article made and delivered in pursuance of the contract conforms to the pattern or model, there is no warranty implied further than that it should be of good workmanship and material."

Cosgrove v. Bennett, 32 Minn. 371, 20 N. W. 359; Milwaukee Boiler Co. v. Duncan, 87 Wis. 120, 41 Am. St. Rep. 33, 58 N. W. 232; Grand Ave. Hotel Co. v. Wharton, 24 C. C. A. 441, 49 U. S. App. 108, 79 Fed. 43; Goulds v. Brophy, 42 Minn. 109, 6 L. R. A. 392, 43 N. W. 834; Wheaton Roller-Mill Co. v. John T. Noye Mfg. Co. 66 Minn. 156, 68 N.W. 854; Cunningham v. Hall, 4 Allen, 268; Wisconsin Red Pressed-Brick Co. v. Hood, 54 Minn. 543, 56 N. W. 165; White v. Adams, 77 Iowa, 295, 42 N. W. 199; Fairbanks, M. & Co. v. Baskett, 98 Mo. App. 53, 71 S. W. 1113; McCray Refrigerator & Cold Storage Co. v. Woods, 99 Mich. 269, 41 Am. St. Rep. 599, 58 N. W. 320.

and

Messrs. Thecdore M. Stuart Washington I. Babb, for defendants in error:

Where an article, especially an article of machinery, is unknown to the purchaser,— that is, he has not suflicient information concerning such article, or its capacity, or manner of operation to form an opinion or judgment as to whether or not it will or can be made to work satisfactorily or with reasonable rapidity and economy at a certain place and in certain kinds and character of materials, wherein he desires and expects to use it, and, before contracting for the purchase of such article from the manufacturers, he fully informs such manufacturer of the locality where he desires and expects to use it, and also of the kind and character of materials in which he expects to use it and, with full knowledge of such facts, the manufacturer states that his said machine will operate in such locality and materials with reasonable rapidity and economy; and the purchaser, relying upon the judgment of the manufacturer, contracts with him to manufacture and furnish him with such machine,—then, and in such case, and under such circumstances, an implied warranty arises on the part of such seller that the machine to be furnished can and will operate in said locality and in said materials as represented by him, or with reasonable rapidity and economy.

Kellogg Bridge Co. v. Hamilton, 110 U. S. 108, 28 L. ed. 86, 3 Sup. Ct. Rep. 537; Grand Ave. Hotel Co. v. Wharton, 24 C. C. A. 444, 49 U. S. App. 108, 79 Fed. 43; Parsons Band Cutter & Self Feeder Co. v. Mallinger, 122 Iowa, 703, 98 N. W. 580; Alpha Checkrower Co. v. Bradley, 105 Iowa, 537, 75 N. W. 369; Blackmore v. Fairbanks, M. & Co. 79 Iowa, 289, 44 N. W. 548; Timken Carriage Co. v. Smith, 123 Iowa, 554, 99 N. W. 183; Burnett v. Hensley, 118 Iowa, 578, 92 N. W. 678; Latham v. Shipley, 86 Iowa, 543, 53 N. W. 342; Eversole, Enc. Iowa Law, § 981; Benjamin, Sales, § 1002, note 40; Merriam v. Field, 24 Wis. 640; Leopold v. Van Kirk. 27 Wis. 152; Roe v. Bacheldor, 41 Wis. 360; Wilcox v. Owens, 64 Ga. 601; Lanz v. Southern Automatic Electric Shock Mach. Wachs, 50 Ill. App. 262; Kennebrew v. Co. 106 Ala. 377, 17 So. 545; Zimmerman v. Druecker, 15 Ind. App. 512, 44 N. E. 557; Lee v. J. B. Sickles Saddlery Co. 38 Mo. App. 201; Omaha Coal, Coke &Lime Co. v. Fay, 37 Neb. 68, 55 N. W. 211; Overton v. Phelan, 2 Head, 445; Brenton v. Davis, 8 Blackf. 318, 44 Am. Dec. 769; Rodgers v. Niles, 11 Ohio St. 53, 78 Am. Dec. 290; Southern Brass & Iron Co. v. Exeter Machine Works, 109 Tenn. 67, 70 S. W. 614; Ottawa Bottle & Flint-Glass Co. v. Gunther, 31 Fed. 208; Fox v. Stockton Combined Harvester & Agri.

Works, 83 Cal. 333, 23 Pac. 295; Rogers v. Hanson, 35 Iowa, 286; McClung v. Kelley, 21 Iowa, 508; Jones v. Just, L. R. 3 Q. B. 197; Brown v. Edgington, 2 Mann. & G. 279; Pease v. Sabin, 38 Vt. 432, 91 Am. Dec. 364; Port Carbon Iron Co. v. Groves, 68 Pa. 149; Getty v. Rountree, 2 Pinney (Wis.) 379, 54 Am. Dec. 138; Walton v. Cody, 1 Wis. 420; Creasy v. Gray, 88 Mo. App. 454; McCormick Harvesting Mach. Co. v. Nicholson, 17 Pa. Super. Ct. 188; William Anson Wood Mower & Reaper Co. v. Thayer, 50 Hun, 516, 3 N. Y. Supp. 465; McClamrock v. Flint, 101 Ind. 278; Woodle v. Whitney, 23 | Wis. 55, 99 Am. Dec. 102.

Sanborn, Circuit Judge, delivered the opinion of the court:

An implied warranty that an article will be fit for a particular purpose may be inferred from a contract to make or supply it to accomplish that purpose, because the accomplishment of the purpose is the essence of the undertaking. But no such warranty arises out of a contract to make or supply a specific, described, or definite article, although the manufacturer or dealer knows that the vendee buys it to accomplish a specific purpose, because the essence of this contract is the furnishing of the specific article, and not the accomplishment of the purpose. In other words, a warranty that a machine, tool, or article sold is fit and suitable to accomplish a particular purpose or to do a specific work may be implied when the manufacturer or dealer knows the purpose or work to be effected, and the purchase of the machine, tool, or article is in reality an employment of the vendor to do the work by making or furnishing a machine, tool, or article, to effect it. Kellogg Bridge Co. v. Hamilton, 110 U. S. 108, 116. 28 L. ed. 86, 89, 3 Sup. Ct. Rep. 537; Breen v. Moran, 51 Minn. 525, 53 N. W. 755; Leopold v. Van Kirk, 27 Wis. 152, 156; Brenton v. Davis, 8 Blackf. 318, 44 Am. Dec. 769: Omaha Coal, Coke, & Lime Co. v. Fay, 37 Neb. 68, 75, 55 N. W. 211; Lee v. J. B. Sickles Saddlery Co. 38 Mo. App. 201, 205; Rodgers v. Niles, 11 Ohio St. 53, 57, 78 Am. Dec. 290: White v. Adams, 77 Iowa, 295, 297, 42 N. W. 199.

But no implied warranty that a machine, tool, or article is suitable to accomplish a particular purpose or to do a specific work arises where the vendor orders of the manufacturer, or purchases of the dealer, a specific, described, or definite machine, tool,

when it is followed by a written contract, complete in itself, which is silent upon the subject. The extent of the implied warranty in such a case is that the machine, tool, or article shall correspond with the description or exemplar, and that it shall be suitable to perform the ordinary work which the described machine is made to do. Seitz v. Brewers' Refrigerating Mach. Co. 141 U. S. 510, 518, 519, 35 L. ed. 837, 840, 841, 12 Sup. Ct. Rep. 46; Keates v. Cadogan, 2 Eng. L. & Eq. 320, 10 C. B. 591; Grand Ave. Hotel Co. v. Wharton, 24 C. C. A. 441, 443, 49 U. S. App. 108, 79 Fed. 43, 45; Morris v. Bradley Fertilizer Co. 12 C. C. A. 34, 35, 28 U. S. App. 87, 64 Fed. 55, 56; Leake, Contr. 4th ed. 261, 262; 1 Parsons, Contr. 586, 587; Union Selling Co. v. Jones, 63 C. C. A. 224, 227, 229, 128 Fed. 672, 675, 677; McCray Refrigerating & Cold Storage Co. V. Woods, 99 Mich. 269, 41 Am. St. Rep. 599, 58 N. W. 320; Cosgrove v. Bennett, 32 Minn. 371, 20 N. W. 360; Goulds v. Brophy, 42 Minn. 109, 6 L. R. A. 392, 43 N. W. 834: Wisconsin Red Pressed-Brick Co. v. Hood, 54 Minn. 545, 56 N. W. 165; Fairbanks, M. & Co. v. Baskett, 98 Mo. App. 53, 71 S. W. 1113; Wheaton Roller-Mill Co. v. John T. Noye Mfg. Co. 66 Minn. 156, 68 N. W. 854; Milwaukee Boiler Co. v. Duncan, 87 Wis. 120, 41 Am. St. Rep. 33, 58 N. W. 232; J. I. Case Plow Works v. Niles & S. Co. 90 Wis. 590, 63 N. W. 1013; Deming v. Foster, 42 N. H. 165, 175; Morse v. Union Stock Yard Co. 21 Or. 289, 14 L. R. A. 157, 28 Pac. 2; Dushane v. Benedict, 120 U. S. 630, 647, 30 L. ed. 810, 814, 7 Sup. Ct. Rep. 696; Carleton v. Jenks, 26 C. C. A. 265, 47 U. S. App. 734, 80 Fed. 937; Alpha Checkrower Co. v. Bradley, 105 Iowa, 537, 546, 75 N. W. 369; Latham v. Shipley, 86 Iowa, 543, 53 N. W. 342; Blackmore v. Fairbanks, M. & Co. 79 Iowa, 289, 44 N. W. 548; Parsons Band Cutter & Self Feeder Co. v. Mallinger, 122 Iowa, 703, 98 N. W. 580.

If the purchaser, Mallory, or his agent, Haven, had described the strata through which he desired to drive the drill, and had ordered the Calyx company to make or to select and furnish to him a drill that would bore the desired holes through these strata as rapidly and economically as я diamond drill, for an agreed price, and the plaintiff had accepted the order, an implied warranty would have arisen that the drill to be furnished under that contract would do the work as speedily and cheaply as a diamond drill. But an accepted order to make and deliver a specific, described drill, which the vendor is engaged in making, has no such effect, although the manufacturer knows the use for which the vendee

desires to obtain it. The reason for this rule is conclusive and unanswerable. When a manufacturer or dealer agrees to make or furnish an article that will accomplish a particular purpose, the accomplishment of the purpose is the substance of his undertaking, and he is free to make or to supply any article that will do the work required. If he furnishes an article that will accomplish this purpose, he performs his contract, although the article he supplies may differ widely from that contemplated by the purchaser when he made the agreement to buy. On the other hand, when the manufacturer or dealer contracts to make or to deliver a specific and definitely described article, to enable the vendor to accomplish a known purpose, the essential part of his obligation is the delivery of the identical article described in the contract: and the delivery of a different article, although it may better accomplish the desired result, is not a performance of his agreement, and does not entitle him to recover the purchase price. The furnishing of the article described, and that alone, whether that article is fit for the known pur. pose to which the vendee intends to apply it or not, constitutes a compliance with the contract by the vendor, and entitles him to secure its fruits. The familiar illustration of this distinction by Maule, J., in Keates v. Cadogan, 2 Eng. L. & Eq. 320, 10 C. B. 591, is still the most felicitous: "If a man says to another, 'Sell me a horse fit to carry me,' and the other sells a horse which he knows to be unfit to ride, he may be liable for the consequences; but if a man says, 'Sell me that gray horse to ride,' and the other sells it, knowing that the former will not be able to ride it, that would not make him liable."

In Kellogg Bridge Co. v. Hamilton, 110 U. S. 108, 116, 28 L. ed. 86, 89, 3 Sup. Ct. Rep. 537, the bridge company had erected a portion of the false work requisite for the construction of a bridge across the Maumee river. Hamilton made a contract with the company to purchase the false work, the foundation of which was concealed by the river, and to complete the bridge. While he was engaged in the performance of this contract, the false work gave way, by reason of defects in its construction, and precipitated the iron upon it into the river. The Supreme Court held that the bridge company impliedly warranted that the work which it sold to Hamilton was suitable to construct the bridge upon because it built this false work, and had sold it to Hamilton to accomplish that specific purpose.

But in Seitz v. Brewers' Refrigerating Mach. Co. 141 U. S. 510, 512, 519, 35 L. ed. 837, 838, 841, 12 Sup. Ct. Rep. 46, the

refrigerating company had been informed before it made its agreement that Seitz was cooling his brewery with ice, that he wanted to dispense with the use of ice, that no machine would be of any value to him unless it would enable him to accomplish this result, and that such a machine must continuously cool 150,000 cubic feet of air to a temperature of 40° Fahrenheit. Thereupon the refrigerating company assured Seitz that its machine would accomplish this result, and, in reliance upon this statement, he entered into a written contract with the company to the effect that the latter should supply and put in operation in his brewery a No. 2 size refrigerating machine, as constructed by it, for the sum of $9,450. The company made and put such a machine in his brewery, but it did not work satisfactorily, and it was incapable of cooling 150,000 cubic feet of air to 40° Fahrenheit. The Supreme Court held that this case fell under the rule 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 thing be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer;" and that there was neither an expressed nor an implied warranty that the ice machine would do the work for which the manufacturer knew that it was purchased, or that it would cool 150,000 cubic feet of atmosphere to 40° Fahrenheit or to any other temperature. This decision indicates the unavoidable conclusion in the case at bar. It also answers the contention of counsel that this case is not governed by the rule that there is no implied warranty of fitness where a known, definite, and described thing is purchased, because Mallory and Haven were not familiar with, and had had no experience in the operation of, the class F3 drill which they purchased. It is not the familiarity of the purchaser with the character and work of the machine ordered, but the identity of the thing described in the contract, which brings the latter within the rule. Seitz was probably ignorant of the character and of the operation of the No. 2 size refrigerating machine which he bought, and he relied upon the assurance of the vendor that it would cool his brewery as he desired. But the machine which he ordered was identified by the description in his contract, and that description made it a known, described, and definite thing. So in the case at bar the description in the acceptel order which Haven made of the class F3 drill perfectly identified it,-made it a known, described, and definite thing, within the meaning of this

In Grand Ave. Hotel Co. v. Wharton, 24 C. C. A. 441, 443, 49 U. S. App. 108, 79 Fed. 43, 45, the vendee ordered two boilers for use in its hotel. The vendor knew the use to which the vendee intended to put the articles, and knew that it must necessarily use the muddy water of the Missouri river in order to operate them. The boilers were furnished, but they would not operate with the water of the Missouri river. This court held that there was no implied warranty that they would do so, and sustained the judgment for their purchase price.

In Milwaukee Boiler Co. v. Duncan, 87 Wis. 120, 41 Am. St. Rep. 33, 58 N. W. 232, the purchaser informed the manufacturer before he made his order that he required a boiler that would produce 130 pounds steam, working pressure, and thereupon the latter offered to furnish a described boiler, and he accepted the offer. The boiler specified was furnished, but it failed to produce 130 pounds steam, working pressure, or to do the work for which the manufacturer knew

the purchaser ordered it. The supreme court of Wisconsin decided that there was no implied warranty that it would accomplish the particular purpose for which it was bought, and said: "The distinction seems to be between the manufacture or supply of an article to satisfy a required purpose, and the manufacture or supply of a specified, described, and defined article, as in this case."

In Goulds v. Brophy, 42 Minn. 109, 112, 6 L. R. A. 392, 43 N. W. 834, the vendee ordered from the catalogue of the manufacturer an auger outfit to bore wells. The vendor furnished the outfit, but it was not suitable to bore the wells which the vendee desired to sink. The supreme court of Minnesota held that there was no implied warranty that it would do so, and said: "There was an implied warranty-or, more correctly speaking, condition of the contract -that it should conform to the description, and be of good material and workmanship according to that description, but none that it would answer the purpose described or supposed."

There are many authorities to the same effect, but it would be a work of supererogation to review them. The contract of the Calyx Drill Company in this case was expressed in writing. It was that it would make and deliver to the purchaser, Mallory, one class F3 drill, and certain other machines and articles, which were definitely specified in the contract. When it supplied these articles, it performed its agreement, whether they were suitable to perform the specific work of boring holes in the land con

Iowa, or not. There is no averment or proof that they were not fit to accomplish the general purpose for which they were made,to bore holes in the earth under ordinary circumstances. The contract of the Calyx Drill Company was not that it would make and deliver a drill which would sink holes in the ground of the vendee in Lucas county as rapidly and economically as a diamond drill; and, if it had made and delivered a drill which would have done this, it would have been required, if the testimony of the defendants is true, to have furnished a different drill and different machinery from that described in its contract, and in so doing it would have failed to perform it.

The reception of the evidence and the charge of the court upon this subject were erroneous (1) because there was no implied warranty that the drill and machinery would be fit to bore holes through the specific strata in the earth in Lucas county; and (2) because, if there had been such a warranty, it would not have included a covenant that the machinery would sink them as rapidly and economically as a diamond drill. Such a covenant could be imported into the contract only by an express agreement, and such an agreement was excluded by the fact that the contract is in writing, and by the rule that, where the written contract of the parties is complete in itself, the conclusive legal presumption is that it embodies the entire engagement of the parties, and the manner and extent of their obligations, so that parol evidence of other terms is inadmissible to extend, modify, or contradict it. Green v. Chicago & N. W. K. Co. 35 C. C. A. 68, 71, 92 Fed. 873, 877; McKinley v. Williams, 20 C. C. A. 312, 319, 36 U. S. App. 749, 74 Fed. 94, 101; Wilson v. New United States Cattle Ranch Co. 20 C. C. A. 244, 249, 36 U. S. App. 634, 73 Fed. 994, 999; Union Selling Co. v. Jones, 63 C. C. A. 224, 227, 128 Fed. 672, 675.

The judgment is accordingly reversed, and the case is remanded to the court below, with instructions to grant a new trial.

Philips, District Judge, dissenting:

I am unable to concur in the foregoing opinion. I make no question of the correctness of the general rule laid down, that, where a known and definite article is ordered of a manufacturer, although it be stated by the purchaser that it is required for a particular purpose, yet, if the known described thing be accordingly supplied, there is no warranty that it will answer the particular purpose desired by the purchaser. This for the obvious reason that the vendor undertakes by the terms of the express con