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state and performs the services for 203 Pa. 289, 52 Atl. 326, not to be a his patrons in another, has arisen in "manufacturing" concern within the several cases, as in Kansas City v. meaning of a statute relating to taxaSeaman (1916) 99 Kan. 143, L.R.A. tion (the statutory provision not be1917B, 341, 160 Pa 1139, and Smith ing set out). It was said: “The apv. Jackson (1899) 103 Tenn. 673, 47 pellant was incorporated for the purL.R.A. 416, 54 S. W. 981. In the for- pose of 'cleansing, bleaching, starchmer case the conclusion was reached ing, and smoothing textile fabrics by that one was engaged in interstate the use of machinery and mechanical commerce who solicited laundry work appliances, and the application of for a laundry company situated with- skilled manual operation.' Its princiout the state; while in the Tennessee pal business is, as properly stated by case, the court held that an agent of

the court below, washing and irona laundry company in another state, ing.' In carrying on this business, it who collected garments and sent them needs soap and dyes, and, even if it out of the state to be laundered and does manufacture these two articles thereafter redelivered them to their for its own use, instead of buying owners, was not engaged in interstate them, such manufacture of them does commerce,

as to be protected not make the 'washing and ironing' against the privilege tax imposed on concern a ‘manufacturing plant and hi s occupation by statute. The court business,' as defined by statute, lexisaid that the term "commerce," found con, or judicial utterance." in the interstate clause of the Fed- Attention is called also to Re White eral Constitution, could not be held to Star Laundry Co. (1902) 117 Fed. 570, embrace a transaction such as was

in which it was held that the business presented in this case; that it implied, of a laundry was not within the proviwhen used by business men, trade or sion of the bankruptcy statute giving traffic, as in the exchange of specific jurisdiction over corporations “enarticles or commodities for other arti- gaged principally in manufacturing, cles or commodities, or else .of these trading, printing, publishing, or merfor money or its representative; that cantile pursuit." The court said that in a case like that before it, nothing, the terms "manufacture" and "manuin the true commercial sense, was sold facturing" have well-recognized interor exchanged; and that there was sim- pretations which were clearly inapply a personal contract based on a plicable to the business under considvaluable consideration having no ele- eration. And the court took the view ment of a commercial transaction fall- that the terms “trading” and “mercaning

within the protection of this tile," as construed by the weight of clause of the Constitution.

authority, could not be applied to the Several other cases may be referred business in question. to because of their value for purposes The question as to what amounts to of illustration or of analogy, although trade or commerce is one which, of the facts do not bring them within the course, has arisen in various other scope of the annotation.

cases, to one or two of which attenIn Muir v. Samuels (1901) 110 Ky. tion is called, in view of the fact that 605, 62 S. W. 481, it was held that a the issue in the reported case (STATE laundry was not a “manufacturing es- v. MCCLELLAN, ante, 527) was as to tablishment” within the meaning of a the meaning of these terms. statute giving to employees a prior Thus, in Campbell v. Motion Piclien on the property of any mine, rail- ture Mach. Operators' Union (1922) road, rolling mill, foundry, “or other 151 Minn. 220, 27 A.L.R. 631, 186 N. manufacturing establishments," when W. 781, where the question was wheththe property passed into the hands of

er the business of conducting a motion a receiver or assignee for the benefit picture theater was a trade within the

meaning of the statute relating to And a laundry company was held in agreements or combinations in Com. v. Keystone Laundry Co. (1902) straint of trade, the court said that

of creditors.

re

it seemed clear that the only logical this case that the organized business conclusion was that the word "trade" of giving exhibitions of baseball bewas used in its broadest sense, and tween clubs in different states was not included business of any kind in interstate commerce within the meanwhich a person engaged for profit. ing of the Federal Anti-trust Acts.

But the Federal Supreme Court has The decision affirms (1921) 269 Fed. taken the position that a baseball ex- 681, 50 App. D. C. 165, in which the hibition, although for money, would court, after referring to various definot be called "trade or commerce" in nitions of the terms “trade" and the commonly accepted use of those "commerce," said that through these words, observing that personal effort, definitions runs the idea that trade not related to production, is not a sub- and commerce require the transfer of ject of commerce. Federal Baseball something, whether it be persons, Club v. National League (1922) 259 commodities, or intelligence, from one U. S. 200, 66 L. ed. 898, 26 A.L.R. 357, place or person to another. 42 Sup. Ct. Rep. 465. It was held in

R. E. H.

HOISTING ENGINE SALES COMPANY, Appt.,

V.
JOHN J. HART, Respt.

New York Court of Appeals - November 20, 1923.

(237 N. Y. 30, 142 N. E. 342.)

Bailment — implied warranty of fitness.

1. A warranty of fitness is implied in leasing machinery for performance of specified work for which it was designed.

[See note on this question beginning on page 540.] Evidence – to explain lease.

of implied warranty. 2. In a suit upon a written lease of 3. Any warranty of fitness of a maa machine for performance of a stated chine for a special purpose implied contract, evidence is admissible to from a leasing for that purpose may show the details of the work to be be proved by parol, although the lease performed and the lessor's knowledge is in writing and contains, no warof it.

ranty.

APPEAL by plaintiff from a judgment of the Appellate Division of the Supreme Court, Second Department, affirming a judgment of a Trial Term for Westchester County in favor of defendant on his counterclaim in an action brought to recover rental alleged to be due for certain machinery leased by plaintiff to defendant under written agreements of lease. Affirmed.

The facts are stated in the opinion of the court.

Messrs. Kenneth E. Stockton and Thomas v. Scutt, 127 N. Y. 133, 27 N. Edward R. Whittingham, with Messrs. E. 961; Cody v. Dickinson, 159 App. Stockton & Stockton, for appellant. Div. 234, 144 N. Y. Supp. 159; Samp

The court below erred in admitting son v. Frank F. Pels Co. 199 App. Div. evidence of oral negotiations prior to 854, 192 N. Y. Supp. 538; Hoe v. Santhe execution of the written contract born, 21 N. Y. 552, 78 Am. Dec. 163; to prove an “implied warranty" of fit- Kellogg Bridge Co. v. Hamilton, 110 ness for a particular purpose.

U. S. 108, 28 L. ed. 86, 3 Sup. Ct. Rep. Eighmie v. Taylor, 98 N. Y. 288; 537; Smith v. Coe, 170 N. Y. 162, 63 (237 N. Y. 30, 142 N. E. 342.) N. E. 57; Heath Dry Gas Co. v. Charter Gas Engine Co. v. Kellam, 79 Hurd, 193 N. Y, 255, 25 L.R.A.(N.S.) App. Div. 231, 79 N. Y. Supp. 1019; 160, 86 N. E. 18.

G. B. Shearer Co. v. Kakoulis, 144 N. There was no implied warranty of Y. Supp. 1077. fitness for any general purpose.

Where the hirer makes known to the Hargous v. Stone, 5 Ñ. Y. 73; Bar- owner the purpose for which the propnard v. Kellogg, 10 Wall. 383, 19 L. ed. erty is hired and relies upon the skill 987; Bartlett v. Hoppock, 34 N. Y. 118, and judgment of the owner, there is an 88 Am. Dec. 428; Dounce v. Dow, 64 N. implied warranty of fitness for the Y. 411; Hoe v. Sanborn, 21 N. Y. 552, purpose for which the property is 78 Am. Dec. 163; Jaffe v. Harteau, 56 hired. N. Y. 398, 15 Am. Rep. 438; Edwards Chamberlain v. Pratt, 33 N. Y. 47; v. New York & H. R. Co. 98 N. Y. 245, Chase v. Second Ave. R. Co. 97 N. Y. 50 Am. Rep. 659; Timlin v. Standard 384, 49 Am. Rep. 531; Henry E. Fox Oil Co. 126 N. Y. 514, 22 Am. St. Rep. Constr. Co. v. Logan Constr. Co. 170 845, 27 N. E. 786; Hirsch v. Radt, 228 N. Y. Supp. 50; Rinaldi v. Mohican Co. N. Y. 104, 126 N. E. 653; Builders' 225 N. Y. 70, 121 N. E. 471, 18 N. C. C. Brick & Supply Co. v. Walsh Transp. A. 1058; Putnam v. Interior Metal Co. 106 Misc. 460, 174 N. Y. Supp. 690, Mfg. Co. 225 N. Y. 37, 121 N. E. 463; affirmed in 189 App. Div. 898, 178 N. Carleton v. Lombard, A. & Co. 149 N. Y. Supp. 881; Robertson v. Amazon Y. 137, 43 N. E. 422; Bierman v. City Tug & Lighterage Co. L. R. 7 Q. B. Mills Co. 151 N. Y. 482, 37 L.R.A. 799, Div. 598, 51 L. J. Q. B. N. S. 68, 46 56 Am. St. Rep. 635, 45 N. E. 856; Van L. T. N. S. 146, 30 Week. Rep. 308, 4 Wyck v. Allen, 69 N. Y. 61, 25 Am. Asp. Mar. L. Cas. 496–C. A.; Garrett- Rep. 136; Sand v. Garford Motor Truck son v. Rinehart & D. Co. 75 W. Va. 700, Co, 204 App. Div. 70, 198 N. Y. Supp. 84 S. E. 929.

43, appeal dismissed in 236 N. Y. 327, Messrs. Franklin Nevius and Wil- 140 N. E. 713; Sturm v. Williams Oven liam K. Hartpence, with Messrs. Kel- Mfg. Co. 201 App. Div. 113, 193 N. Y. logg & Rose, for respondent:

Supp. 852; Sampson v. Frank F. Pels It was not error to permit oral tes- Co. 199 App. Div. 854, 192 N. Y. Supp. timony of the conversation between 538; Cooper v. Payne, 103 App. Div. the president of the plaintiff company 118, 93 N. Y. Supp. 69, 186 N. Y. 334, and the defendant at the time that the 78 N. E. 1076; Bell v. Mills, 78 App. contract was entered into, for the pur- Div. 42, 80 N. Y. Supp. 34; Van Pub. pose of establishing an implied war- Co. v. Westinghouse, C. K. & Co. 72 ranty that the machinery was reason- App. Div. 121, 76 N. Y. Supp. 340; ably fit for the purpose for which it Landreth v. Wyckoff, 67 App. Div. 145, was leased.

73 N. Y. Supp. 388; William Anson Putnam v. Interior Metal Mfg. Co.

Wood Mower & Reaper Co. v. Thayer, 225 N. Y. 37, 121 N. E. 463; Moriarty

50 Hun, 516, 3 N. Y. Supp. 465; Newv. Porter, 22 Misc. 536, 49 N. Y. Supp.

man v. Wilson, 78 Hun, 295, 28 N. Y. 1107; Carleton v. Lombard, A. & Co. 149 N. Y. 137, 43 N. E. 422; Bierman

Supp. 914; Moriarty v. Porter, 22 Misc. v. City Mills Co. 151 N. Y. 482, 37

536, 49 N. Y. Supp. 1107; The St. S. L.R.A. 799, 56 Am. St. Rep. 635, 45 N.

Angelo Toso, 271 Fed. 245; Herbrand E. 856; Sampson v. Frank F. Pels Co.

Co. v. Lackawanna Steel Co. 280 Fed. 199 App. Div. 854, 192 N. Y. Supp.

11; Dushane v. Benedict, 120 U. S. 630, 538; Sturm v. Williams Oven Mfg. Co.

30 L. ed. 810, 7 Sup. Ct. Rep. 696; 201 App. Div. 113, 193 N. Y. Supp. 852;

Flynn v. Bedell Co. 242 Mass. 450, 27 Cooper v. Payne, 103 App. Div. 118, 93

A.L.R. 1504, 136 N. E. 252; McClamN. Y. Supp. 69, 186 N. Y. 334, 78 N. E.

rock v. Flint, 101 Ind. 278; Conn v. 1076; Van Pub. Co. v. Westinghouse,

Hunsberger, 224 Pa. 154, 25 L.R.A. C. K. & Co. 72 App. Div. 121, 76 N. Y.

(N.S.) 372, 132 Am. St. Rep. 770, 73 Supp. 340; William Anson Wood Atl. 324, 16 Ann. Cas. 504; 15 Am & Mower & Reaper Co. v. Thayer, 50

Eng. Enc. Law, 2d ed. pp. 1231, 1234, Hun, 516, 3_N. Y. Supp. 465; The St.

1237. S. Angelo Toso, 271 Fed. 245; Herbrand Co. v, Lackawanna Steel Co. 280

Crane, J., delivered the opinion Fed. 11; Flynn v. Bedell Co. 242 Mass.

of the court: 450, 27 A.L.R. 1504, 136 N. E. 252;

The plaintiff and the defendant Heath Dry Gas Co. v. Hurd, 193 N. Y. entered into an agreement of which 255, 25 L.R.A.(N.S.) 160, 86 N. E. 18; · the material part is as follows:

“Lease.

ment recovered by the defendant the "The Hoisting Engine Sales Co., plaintiff has appealed, presenting Inc., lessor, hereby leases to John

what it claims to have been errors J. Hart, lessee, the following equip

in the admission of evidence to vary ment subject to the following terms:

the terms of the writing as given

above. "One 40' boom, all steel Shannon Traveler with an 81x10 D. C. D. D.

The position the plaintiff takes is Lambert hoist with swinger and this: The writing contains no excounterweight drum.

press warranty that the traveler

and hoist will do the defendant's “Delivery to be made at Nutley, N. J.

work; there is no implied warranty, "Return delivery to be made to

so there was no warranty at all.

Therefore, if this be true, it was erour yard at Long Island City with trucking charges prepaid to above

ror to permit the defendant to give

in evidence the conversation with yard or to an equal distance elsewhere if so directed. Lessee agrees

the plaintiff's president, preceding to return equipment in as good con

the execution of the lease, wherein dition as when received less wear in

he was told the nature of the decident to normal service in the

fendant's contract and the kind of hands of a competent operator.

machinery required. This, says the “Equipment to be used by the les- plaintiff, added an express oral warsee on his contract at Singac, N. J."

ranty to the written lease, as no im

plied warranty arose out of the After the defendant had installed

transaction. the traveler and hoist, it broke down

When John J. Hart, the defendcompletely and failed to do the work

ant, was on the stand, he was asked: for which it was hired. The de

Q. What was the general nature fendant had a subcontract with the

of that contract? Brady Company in the state of New

A. It was laying a pipe line. Jersey to excavate a trench and lay

Q. Well about how long a pipe about 10 miles of water pipe. The

line, and what kind of pipe? pipes were made of steel, 30 feet

A. It was a steel pipe, 72 inches long and 72 inches in diameter, and

in height, 30 feet long, and about 10 weighed about 41 tons each. With

miles of work. the derrick the defendant intended

Q. Do you know Mr. Cist, the to operate an orange-peel bucket to

president of the plaintiff company? do the digging and also intended to

A. I do. use the same machine to put the

Q. Did you have a conversation pipe in the trench. The hoist could

with Mr. Cist in regard to your connot be operated as it was designed

tract over in New Jersey ? to work, and the boom broke when

A. I did, in Mr. Cist's office. attempting to lift one of the pipes.

Q. Now state what you said to That the machinery was unfit for

Mr. Cist and what Mr. Cist said to the purpose for which it was hired

you. has been determined by the jury and

A. I told Mr. Cist what I wanted. the unanimous affirmance of its ver

I said: "Have you got a traveling dict by the appellate division con- derrick? I want to use an orange cludes us from examining the ques- peel on it to do the digging." I also tion.

wanted to use the same machine to The defendant having returned put in pipe. He said: "I have got the traveler and hoist, this action a rig that you can use; in fact, it was commenced to recover the rent- is over in Jersey now." I said, al reserved in the lease. The de- "What kind of a machine is it?" and fendant counterclaimed by setting he said, “It is a Lambert engine, 81 up a breach of warranty and de- by 16, with a swinger on it, and it is manding the damages sustained in a Shannon traveler." I says, “What consequence thereof. From a judg.. kind do you call a Shannon travel(237 N. Y. 30, 142 N. E. 342.) er ?” and he said, "It is a machine therefore, from their nature, may good for 10 tons."

attach to a written as well as an unThis testimony was received over

written contract of sale." Carleton objection and exception.

v. Lombard, A. & Co. 149 N. Y. 137, In the first place, we must note

146, 43 N. E. 424. Thus, there is an that the written lease refers to a implied warranty in manufactured purpose for which this traveler and goods sold by the maker that they hoist were to be used. “Equipment

are free from any latent defect to be used by the lessee on his growing out of process of manufaccontract at Singac, New Jersey." ture (Hoe v. Sanborn, 21 N. Y. 552, These are the written words. What

78 Am. Dec. 163; Carleton v. Lomdo they signify without any oral bard, A. & Co. supra); also, in the testimony to explain them? First, sale of seeds by the grower there is they signify that the plaintiff knew an implied warranty that they are that the defendant had a contract

free from any latent defect arising to do work at Singac, New Jersey. from improper cultivation (White Second, they make clear that the v. Miller, 71 N. Y. 118, 27 Am. P.ep. plaintiff also knew that the equip. 13). In the sale by a retail dealer ment it was leasing to the defendant

of articles of food for immediate use was to be used on that work. Third,

there is an implied warranty that that from the nature of the equip- they are fit for human consumption. ment the plaintiff knew that the Race v. Krum, 222 N. Y. 410, L.R.A. work was to be the hoisting of dirt

1918F, 1172, 118 N. E. 853; Rinaldi and materials. Where the writing v. Mohican Co. 225 N. Y. 70, 121 is sufficiently specific to state all N. E. 471, 18 N. C. C. A. 1058. That these things, I do not consider it a the sale of any of these things was

departure from the in writing, expressing no warranty, Evidence-to

instrument to show would not prevent the warranty by explain lease. a little more in de implication from attaching.

By tail what the defendant's contract analogy there is an implied warranwas, and that the plaintiff knew all ty in the hiring or bailment of cerabout it. The plaintiff in writing tain kinds of property. In the hirsays: “I know that you want my

ing of a horse there is an implied hoisting machine for use on your warranty that he is fit for the purcontract in Singac, New Jersey.” pose for which he was taken (Fow

Does this not reasonably imply ler v. Lock, L. R. 7 C. P. 272); in that it also knew the nature of that hiring a carriage that it will not fall contract and generally the kind of apart (Hyman v. Nye & Sons work it called for? It does not vary

(1880) L. R. 6 Q. B. Div. 685, 44 L. the terms of the written instrument T. N. S. 919, 45 J. P. 554). Where to show by parol that the plaintiff wharfingers agreed to permit a shipknew what it was writing about,

owner to discharge his vessel at when it referred to the defendant's their jetty in the Thames, where contract.

vessels must of necessity ground in This case was not tried on the the- low water, there was an implied ory of an express warranty, so let warranty that the bed of the river us proceed to consider the implied was not so uneven as to cause damwarranty, if any. If there be an age to the ship. The Moorcock implied warranty in the hiring of (1888) L. R. 14 P. Div. 64, 58 L. J. machinery for a special purpose, Prob. N. S. 73, 60 L. T. N. S. 654,

that it is and will be 37 Week. Rep. 439, 6 Asp. Mar. L. -of inplied fit for such use, or,

Cas. 373—C. A. Shipowners agreewarranty.

at least, will work, ing to furnish the necessary cranes, then the warranty may be proved or chains, and gearing to a stevedore implied even though the hiring was to discharge a cargo impliedly warby written agreement, containing no rant that the chains are so far warranty. "All implied warranties, sound as to be sufficient for the

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