fect machines on account of being constructed of unseasoned lumber, rendering them unfit to perform the work perfectly, for which they were put in the mill."

Plaintiffs moved for judgment on the special findings. The court took the case under advisement, and at a subsequent term gave judgment for defendants against plaintiffs for the sum of $43.50 in accordance with the verdict and findings. Plaintiffs bring the case here for review, and allege numerous errors. Many of these relate to rulings upon objections to the amended cross-petition filed after the cause was remanded, and to objections to the evidence introduced by defendants in support of the cross-demand. From the view we have taken of the case, its merits can be disposed of by considering the action of the trial court upon the motion for judgment on the findings.

It might be observed, in passing to the main question, that the jury beyond doubt allowed several items of alleged damages twice, and it is equally clear that their finding the value of the machines to be $375, in the face of the express terms of the written contract fixing the purchase price at $875, was without warrant of law. It is well settled that a purchaser of goods who seeks to recover dainages for a breach of a warranty must affirm the contract in all its terms, and is bound by the contract price. He cannot retain the goods, and at the same time repudiate the contract. Weybrick & Co. v. Harris, 31 Kan. 92, 1 Pac. 271. Plaintiffs were entitled to a credit, to start with, of the $875, the price and value fixed by the contract, from which should be deducted the freight charges of $25 paid by defendants, and any damages resulting from a breach of any warranty which the contract expressed or the law implied. That there was no express warranty was settled by the former decision. The main question, therefore, is this: From the facts in this case, was there an implied warranty by plaintiff that the machines would do the work for which they were purchased? The doctrine of implied warranties in the sale of manufactured articles was stated and applied in Lukens v. Freiund, 27 Kan. 664, 51 Am. Rep. 429. The syllabus reads as follows: "While, when an article is ordered from a manufacturer to be by him manufactured for a specific and understood purpose, there is in some cases an implied warranty that the article when manufactured will be reasonably fit for the purpose intended, yet, when a purchase is made from him of a specific and completed article, he is to be regarded as a dealer, and his liability determined accordingly. Field v. Kinnear. 4 Kan. 476; Bigger v. Bovard, 20 Kan. 204; Duncan v. Baker, 21 Kan. 99." Justice Brewer, in the opinion, quotes in the following language from a well-recognized authority: "After quite a review of the authorities in Smith's Leading Cases, p. 251,

the author sums up the result thus: 'On the whole, therefore, it may be doubted whether there be any instance, in which a knowledge of the object for which a specific chattel is bought will raise an implied warranty that it is fit for that purpose, although a failure to acquaint the vendor with its unfitness may be evidence of fraud, and thus render the vendor liable in an action of tort.'" The same question was passed upon by this court in Safe & Lock Co. v. Huston, 55 Kan. 104, 39 Pac. 1035. It was there held that there was no implied warranty as to quality. The court said: "There is nothing in this case indicating that the safe purchased by the plaintiffs was manufactured especially for them, but the fair inference is that it was one of the kind of safes which the defendant manufactured for sale to whomsoever would buy." The doctrine of Lukens v. Freiund, supra, was expressly approved in Kinkel v. Winne, 67 Kan. 100, 72 Pac. 548, 62 L. R. A. 596, where the contract was for the sale and purchase of a fire insurance business, and it was sought to establish an implied warranty of the character and fitness of a certain register showing the expiration of policies. In the opinion, the following statement of the general rule is quoted from Leake on Contracts (2d Ed.) 404: "If an order be given for the manufacture or supply of an article to satisfy a required purpose, that purpose, and not any specific article, being the essential matter of the contract, the seller is then bound, as a condition of the contract, to supply an article reasonably fit for the purpose, and is considered as warranting that it is so. If an order be given for a specific article of a recognized kind or description, and the article is sup

plied, there is no warranty that it will answer the purpose described or supposed, although intended and expected to do so.'"

It is interesting in this connection to note that by statute in England no such warranty as is contended for in this case can arise by implication. The English sale of goods act upon this subject is as follows: "14. Subject to the provisions of this act and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows: (1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller's skill or judgment, and the goods are of a description which it is in the course of the seller's business to supply (whether he be the manufacturer or not), there is an implied condition that the goods shall be reasonably fit for such purpose, provided that in the case of a contract for the sale of a specified article under its patent or other trade-name there is no implied condition as to its fitness for any particular pur

pose." The scope of this proviso is stated by Lord Russell, C. J., in the following language: "That obviously is intended to meet the case, not of the supply of what I may call for this purpose raw commodities or materials, but for the supply of manufactured articles steam ploughs, or any form of invention which has a known name, and is bought and sold under its known name, patented or otherwise. Gillespie Bros. & Co. v. Cheney, Egger & Co., 2 Q. B. 59, at 64." The common-law rules on the subject of implied conditions or warranties as to quality or fitness are referred to and the cases classified in Jones v. Just, L. R. 3 Q. B. 197, 37 L. J. Q. B. 89, where the particular warranty under consideration is spoken of in the following language: "Thirdly, where a known, described, and defined article is ordered of a manufacturer, although it is stated to be required by the purchaser for a particular purpose, still, if the known, described, and defined thing be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer"-citing Chanter v. Hopkins, 4 M. & W. 399. The English statute on this subject is discussed and the leading cases under the statute which is declaratory of the common law are cited in Benjamin on Sales (5th Ed.) 622, 623, 635.

In Davis Calyx Drill Co. v. Mallory, 137 Fed. 332, 69 L. R. A. 973, 69 C. C. A. 662, there was a written contract for the purchase of a drill described in the manufacturers' catalogue. The purchaser relied upon assurances made before the contract was entered into to the effect that the drill would be suitable for drilling through certain strata of rock in Lucas county, Iowa, and sought to recover damages upon the theory that, because the manufacturer knew the special purpose for whic: the drill was purchased, there was an implied warranty that it would be suitable for such purpose. It was held: "An implied warranty that an article will be fit for a particular purpose may be inferred from a contract to make or furnish it to accomplish that specific purpose, because the accomplishment of the purpose is the essence of this contract. * But no im

plied warranty of such fitness arises out of a contract to make or supply a described and definite article, although the vendor knows that the vendee is purchasing it to accomplish the specific purpose, because the essence of this contract is the delivery of the specific article, and not the accomplishment of the purpose." So in Seitz v. Brewers' Refrigerating Co., 141 U. S. 510, 2 Sup. Ct. 46, 35 L. Ed. 837, the manufacturer was informed that plaintiff desired to dispense with the use of ice in cooling his brewery; that, unless the proposed machine would cool 150,000 cubic feet of air to a certain degree, it would be of no value. The manufacturer assured him that the machine would answer the purpose, and plaintiff entered into the

written contract relying upon such representation. The contract was for the purchase of a certain, specific machine which failed to answer the purpose for which it was purchased. The Supreme Court held that there was neither an express nor an implied warranty that the machine would answer the purpose. As said in Davis Calyx Drill Co. v. Mallory, supra, "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" that there is no implied warranty of fitness where a known, definite, and described thing is purchased.

A recent case in point is Lombard W. W. G. Co. v. Great Northern Paper Co., 63 Atl. 555, 101 Me. 114, 6 L. R. A. (N. S.) 180. There, as here, the written contract consisted of a proposal to purchase and an acceptance. The things purchased were automatic water-wheel governors, described as "four (4) of our type 'B' governors, and four (4) of our "23' balanced relief valves." It was contended that the governors were not adapted to the purpose intended, and that there was an implied warranty that they would be suitable for the purpose of defendants' plant. The court said in the opinion: "It would be sufficient to say that the existence of this implied warranty as part of the contract is negatived by its explicit terms defining the guaranties of the plaintiff, by the fact that it contains express guaranties which by the legal construction exclude all others, and by the fact that the goods sold were articles such as the vendor in the ordinary course of his business manufactured for the general market. When a contract is in writing, an additional warranty, not expressed or implied by its terms, that the article is fit for the particular use, cannot be added by implication." (The italics are ours.) In addition to the foregoing, the following cases announce the same doctrine: Cleveland Punch & Shear Works Co. v. Consumers' Carbon Co., 78 N. E. 1009, 75 Ohio St. 153; Grand Avenue Hotel Co. v. Wharton, 79 Fed. 43, 24 C. C. A. 441; Storage Co. v. Woods & Zent, 99 Mich. 269, 58 N. W. 320, 41 Am. St. Rep. 599; Peoria Grape Sugar Co. v. Turney, 175 Ill. 631, 51 N. E. 587; Wiedeman v. Keller, 171 Ill. 93, 49 N. E. 210; Gossler v. Eagle Sugar Refinery, 103 Mass. 331; Milwaukee Boiler Co. v. Duncan, 87 Wis. 120, 58 N. W. 232, 41 Am. St. Rep. 33; Goulds v. Brophy, 42 Minn. 109, 43 N. W. 834, 6 L. R. A. 392; Wheaton Roller-Mill Co. v. John T. Noye Mnfg. Co., 66 Minn. 156, 68 N. W. 854; Whitmore et al. v. South Boston Iron Company, 2 Allen (Mass.) 52; Ottawa Bottle & Flint-Glass Co. v. Gunther (C. C.) 31 Fed. 208.

In 15 American & English Encyclopedia of Law, p. 1236, note 6, the case of Smith v. McNair, 19 Kan. 330, 27 Am. Rep. 117, is cit

ed as holding generally that a dealer is liable to a purchaser of goods upon an implied warranty as to fitness and quality. There the vendor sold certain papers purporting on their face to be genuine school district bonds, which turned out to be forgeries. The vendor was held liable. The distinction between that case and this is that there the vendor did not deliver the thing purchased. In the opinion Chief Justice Horton stated the rule as follows: "The rule is that, if one person applies to another to purchase an article for a. particular purpose, and the person so applied to sells him the article knowing that the purchaser relies upon his complying with his request, the law implies that the article is delivered with a warranty that it is the article called for." It will be readily seen that the case does not decide that there is an implied warranty on the part of the dealer that the thing sold will answer the purpose intended by the buyer, but that the implied warranty is that the thing called for by the contract of purchase shall be delivered.

Another case cited in the same note, where the vendor was a dealer, and it was held that there was an implied contract as to quality, is that of Shaw v. Smith, 45 Kan. 334. 25 Pac. 886, 11 L. R. A. 681. Shaw & Co. were dealers in flaxseed, and Smith entered into a contract with them by which they were to furnish flaxseed for him to sow and raise a crop from. The dealers were to purchase the crop from him upon certain terms stated in the contract. The dealers did not have the flaxseed at the time the contract was made. They afterwards furnished flaxseed which appeared to be good, and which both parties believed to be good. In fact it was worthless. It was held that there was an implied warranty that the seed should be suflicient for the purpose of sowing and raising a crop. It was said in the opinion: "The entire contract when made was executory, and it was to be executed and performed afterward, and to be performed in parts and at different times. The seller was first to furnish the seed, and he did so in about 10 days after the contract was made, and of course the seed was to be a kind of seed that would grow." This was necessarily implied from the fact that Smith was to sow it and raise a crop therefrom, which the vendor of the seed was to purchase upon certain terms and conditions mentioned in the contract. It will be observed that warranty of quality was one which the particular facts and circumstances of that case necessarily raised by implication. The vendor did not deliver the kind of seed necessarily contemplated by both parties when the contract was made. The contract was executory, and it is well settled that a different rule obtains where goods are sold and delivered upon an executed contract, as in the present case. 15 A. & F Enc. of Law, 12:39.

In Mechem on Sales, § 1349, the author says: "The implied warranty of fitness is

not to be extended to cases which lack the necessary conditions upon which it depends. The essence of the rule is that the contract is executory; that the particular article is not designated by the buyer; that only his need is known; that he does not undertake or is not able to determine what will best supply his need, and therefore necessarily leaves the seller to make the determination and take the risk; and if these elements are wanting, the rule does not apply.”

It

At the time the machinery in this case was purchased, plaintiffs in error were engaged at Enterprise, Kan., in the business of manufacturing and selling mill machinery. The machines in controversy were not manufactured by them, but were made by Wolf Bros. at Chambersburg, Pa., and shipped direct to the purchaser from the manufacturers. Plaintiffs are dealers, and the findings are that they did not see the machines nor have an opportunity to do so until after they were in operation. There is a finding also that the machines turned out by the manufacturers and placed upon the market were complete in themselves and required only to be attached by suitable connections to be operated. appears that the machines were described in the manufacturers' catalogue, and that 32 similar machines had been sold in Kansas and were in operation when Casper Brown, after corresponding with some of the owners of mills where the same machinery were in use, made his purchase. The contract relied upon by plaintiffs in error appears to be the same contract in every respect that it was when the case was here before. It was then held that the written contract comprised in the order and letter of acceptance could not be varied or extended by parol evidence to cover matters upon which the writings themselves were silent. It was said: "Nothing remained to complete the contract save the delivery of the machines in accordance with its terms. The terms of the contract, the extent of the obligation undertaken by the parties, are embodied in and limited to what is expressed in the writing, and, as no words of warranty are employed, it will be conclusively presumed that no warranty was intended or existed." This language had reference to an attempt to prove an express warranty by evidence of an oral, contemporaneous agreement. In the concluding paragraph of the opinion, Justice Pollock, speaking for the court, observed that numerous cases had been cited upon the law applicable to implied warranties, and that they were inapplicable to the case of an express warranty, and further remarked: "IIad the defendant based his action for affirmative relief upon the existence of an implied warranty, and had the trial court submitted this theory of the case to the jury, the argument so made would have been applicable to such a case, but cannot be given weight here."

After the case was remanded, it was possibly assumed from the remark quoted that

the same warranty could be established by parol evidence by merely amending the answer so as to call the warranty an implied, instead of an express, one. But nothing in the former opinion warrants the assumption. It appears, however, from the record, that the testimony at the last differs but slightly from that introduced on the first trial. While defendants were not permitted in so many words to testify to an oral agreement as to quality and fitness, they were permitted to testify to conversations between plaintiffs and Casper Brown, and representations to him by them with respect to the quality and fitness of the machines to do the work his mill required, and their advice and suggestions to him in reference to making changes in the mill to accomplish certain results, all of which occurred before the written contract was made. Thus, by parol evidence, much of which was the same as on the first trial, defendants were permitted to establish the identical defense which the former decision held could not be made, and extended by such proof the obligations of the contract to cover matters upon which the contract is silent. That there is no such magic in words must be apparent. The case in this aspect presents many points of similarity to that of Storage Co. v. Woods & Zent, 99 Mich. 269, 58 N. W. 320, 41 Am. St. Rep. 599. The The written contract in that case was for the sale and purchase of certain machinery for use in refrigeration, described as "our 20x40 refrigerator." The action was to recover the contract price, and the defense was an express warranty that the apparatus would preserve fresh meats from 30 to 50 days, and that it failed to do so. The court instructed the jury that the written contract could not be varied by parol evidence, and withdrew the defense of an express warranty, but gave an instruction that, if they found from the evidence that defendants purchased the apparatus for a special purpose made known to plaintiff, and relied upon the judgment and knowledge of plaintiff, and not on their own, then there was an implied warranty that the system furnished should be reasonably fit and suitable for that particular purpose. the opinion the court says: "The effect of these instructions, taken in connection with the first mentioned, was to permit the jury to find that there was no express warranty, but that there was an implied one, based on the very evidence relied on to show the express warranty; in effect holding that, while parol evidence was inadmissible to show an express warranty, it might be received to establish an implied one. Implied warranties are not unknown, and they are by no means limited to parol contracts. Thus, there is ordinarily an implied warranty of title where there is a contract of sale of personal property. Again: 'If a thing be ordered of the 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.' This principle, however, is limited to cases where a thing is ordered for a special purpose, and cannot be applied to cases where a special thing is ordered, althougn it be intended for a special purpose. 1 Parsons on Contracts, 587. * But it is

Be

a rule of general application that warranties, whether express or implied, can only issue from the contract itself, and it must be a legal deduction, and cannot depend upon extrinsic evidence, except as it may be neces sary for the explanation of some latent ambiguity.. In the present case, the defendants contracted for the purchase and erection in their refrigerator of an apparatus patented by the plaintif, and called the ‘McCray Patent System of Refrigeratiou.' yond the name, there is nothing to show that it was anything in the nature of a refrigerating process. The contract does not show that it was designed to preserve meats, or that the defendants had anything to do with meats. It does not appear what use it was intended for, or that the plaintiff had any information upon the subject. No warranty can be implied from this that it would preserve meat for any particular length of time."

In the case at bar, the machines are described in the contract as "Wolf gyrators. 1 No. 6-20 sieve 4 reduction machine. 1 No. 6-30 sieve 6 reduction machine." It also appears that with the machines the manufacturer was to furnish sieves to change the granulation of flour from coarse to fine, and that the machines were to be installed in a flouring mill. The contract is silent as to any special purpose for which they were purchased, and since the contract was for the sale of a specific, definite article, manufactured and supplied to the trade generally by the manufacturers, there was no implied warranty that it would answer to or be suitable for a particular purpose. The following language from Johnson v. Powers, 3 Pac. 625, 65 Cal. 179, is quoted with approval in Rogers v. Perrault, 41 Kan. 385, 21 Pac. 287: "If the contract between the vendor and vendee be reduced to writing, nothing which is not found in the writing, except that which is presumed by law from that which is written, can be considered as a part of the contract.'"

But it is claimed that the defects which rendered the machines unsuitable were latent defects caused by the use of unseasoned lumber in constructing them. The findings establish as facts that plaintiffs, who were dealers, and not the manufacturers, had no opportunity to see the machines until after they were delivered, and had no knowledge of the latent defects. There was no implied contract on the part of plaintiffs that the materials of which the machines were constructed should be sound. "Where the vendor is not the manufacturer, and the purchaser knows this fact, the former is not responsible for latent defects, in the absence

of proof of an express warranty or of fraud and deceit upon the part of the seller." 15 A. & E. Enc. of Law, 1236.

From these considerations, it is apparent that upon the findings plaintiffs were entitled to judgment establishing and foreclosing their lien for the amount of the purchase price of the machines less the amount paid for freight.

The cause will therefore be reversed and remanded for further proceedings in accordance with these views. All the Justices concurring.

(46 Wash. 657)

CANADIAN BANK OF COMMERCE v. BINGHAM.

(Supreme Court of Washington. Aug. 1, 1907.) BANKS AND BANKING-PAYMENT OF FORGED CHECKS-RIGHTS AS BETWEEN BANKS.

A bank, which pays forged checks drawn on it to another bank, which has cashed the same, on subsequently discovering the forgery and demanding the money paid to the other bak before that bank has been placed in any worse position than it would have been, had the drawee refused payment when the checks were presented to it, may recover from such other bank the amount so paid it.

[Ed. Note.--For cases in point. see Cent. Dig. vol. 6, Banks and Banking, § 453.]

Appeal from Superior Court, Skagit County; Geo. A. Joiner, Judge.

Action by the Canadian Bank of Commerce against C. E. Bingham, doing business as C. E. Bingham & Co., to recover money paid by plaintiff to defendant on forged checks. From a judgment for plaintiff, defendant appeals. Affirmed.

Smith & Brawley, for appellant. Million, Houser & Surauger, for respondent.

ROOT, J. This case was before the court once heretofore, and may be found reported in 30 Wash. 484, 71 Pac. 43, 60 L. R. A. 955, to which reference is made for a more complete statement of the facts and for a discussion and determination of most of the legal propositions presented on the present appeal. At that time the action of the lower court in sustaining a demurrer to plaintiff's complaint was held erroneous, and the case was remanded for a trial. Upon the hearing it was established that one of the forged checks in question was presented to this appellant at his banking house at Sedro-Woolley, by some one whom none of the bank officers could recall, and cashed by appellant; the check being indorsed by the name of the payee, a person known to none of the officers of the bank, nor to the logging company, whose officers' names were upon the check, one genuine and one a forgery. The other checks involved were presented to this appellant at his bank in Sedro-Woolley, by various business men in said town, they having cashed the same or received them in payment for goods when presented in the course of business. At the close of the evidence

the trial court made findings and conclusions in favor of the plaintiff, and rendered judgment thereupon, from which this appeal is taken.

It is contended by appellant that the evidence shows no negligence whatever upon his part, and that the negligence of the respondent in accepting and cashing the checks when it had at hand the signatures of the logging company's officers, by an examination of which it would have detected a forgery, is sufficient to defeat respondent's action. It is urged that the statute, as well as the common law, required the respondent to know the signatures of its depositors, and that, having accepted and paid the checks, it cannot now recover the money. It seems to us that the holdings of the court when the case was here before are conclusive against the appellant at this time. These checks were forgeries. They never had any value. When the forger passed them, it was an act of fraud, and every one who advanced or paid money as a consideration for one of these checks did it as a result of deception, fraud, or mistake. Hence every one who handled one of these checks and received money in consideration thereof thereby received something for nothing. As a general proposition money so received cannot be withheld when demanded by the party who, by fraud, misrepresentation, or mistake, paid said money for something which he supposed to be of value, but which as a matter of fact and law was valueless. In the opinion handed down before the following appears: "Certainly the governing principle upon which the respondent [now appellant] is entitled to retain the appellant's money, if he is so entitled, is that by the action of the appellant he has been prevented from recovering the money out of which he had been defrauded by the forger before the appellant had taken any action in the premises; or, stated affirmatively, that he has been prejudiced by the action of the appellant in paying the check, instead of allowing it to go to protest. This is in harmony with the undisputed rule that a drawer or maker of a check, who is deceived by a forgery of his own signature, may recover the payment back, unless his mistake has placed an innocent holder of the paper in a worse position than he would have been in if the discovery of the forgery had been made on presentation, and with the rule that allows the maker of a note, who pays it over his own forged signature, to recover, from the person who received it, for money paid by mistake, unless his negligence has caused loss to an innocent purchaser. There are no arbitrary rules of law governing these cases, and none are tended for."

Under this ruling the respondent was entitled to recover, unless respondent's negligence caused a loss to this appellant. It is doubtless true that the respondent was guilty of negligence in not promptly discovering the