work intended. Mowbray v. Merryweather [1895] 2 Q. B. 640, 65 L. J. Q. B. N. S. 50, 14 Reports, 767, 73 L. T. N. S. 459, 44 Week. Rep. 49, 59 J. P. 804-C. A. Sacks to be used in unloading a cargo of peas are warranted by implication to be fit for the purpose. Vogan v. Oulton, 81 L. T. N. S. 435. When a stable keeper let a horse, knowing that it was to be used to take a family to a funeral, he was held liable for an injury caused by the unsuitableness of the horse for the purpose for which it was hired. Horne v. Meakin, 115 Mass. 326. See also Hadley v. Cross, 34 Vt. 586, 80 Am. Dec. 699; Williston, Contr. p. 1956. In Halsbury's Laws of England (vol. 1 § 1117) we find this: "The owner of a chattel which he lets out for hire is under an obligation to ascertain that the chattel so let out by him is reasonably fit and suitable for the purpose for which it is expressly let out, or for which, from its character, he must be aware it is intended to be used; his delivery of it to the hirer amounts to an implied warranty that the chattel is, in fact, as fit and suitable for that purpose as reasonable care and skill can make it."

Bailment

This is the rule to be applied to the facts of this case. The plaintiff owned a traveler with a hoist for digging and lifting work. It hired it to the defendant to do such work on his contract in implied war- Singac, New Jersey. ranty of fitness. There was an implied warranty that the thing would work as it was supposed to do. Instead of this, it broke down, came apart, and collapsed with the first heavy load. The defendant does not claim that there was a warranty that this machine would do a special

class of work for which it might or might not be adapted; he claims on the usual and customary warranty implied in all such hiring, that the machine will work, will go, will do the thing for which it was built, the class of work which its nature indicates it was intended to perform.

We think, therefore, that the conversation above detailed by the defendant Hart was competent, or, at least, added nothing to what was already implied by the law from the nature of the lease and transaction.

It may be that the hiring of a chattel should be assimilated to the sale of goods, and that § 96 of the Personal Property Law (Consol. Laws, chap. 41) applies. Such is Mr. Williston's suggestion in his work on Contracts (§ 1041, p. 1956). We do not deem it necessary to consider the point.

The case of Builders' Brick & Supply Co. v. Walsh Transp. Co. 106 Misc. 460, 174 N. Y. Supp. 690, affirmed in 189 App. Div. 898, 178 N. Y. Supp. 881, is pressed upon our attention as an authority against an implied warranty in the hiring of chattels. Even if we approved of the law as applied in that case-about which we express no opinion-we note the statement in the opinion that "the written agreement that memoralized the engagement of the parties contained no reference to the use to which the dredge was to be put," etc.

In the case we are deciding the written agreement mentioned the

use.

The judgment appealed from must therefore be affirmed, with costs.

Hiscock, Ch. J., and Hogan, Cardozo, Pound, McLaughlin, and Andrews, JJ., concur.

I. Scope, 540. II. In general, 541.

III. Lease or bailment of specified chattel; opportunity to inspect, 544.

IV. Miscellaneous, 546.

I. Scope.

This annotation does not include the cases involving liability for personal injuries resulting from a breach of a warranty implied from the hiring

Rhode Island. Collette v. Page (1921) 44 R. I. 26, 18 A.L.R. 74, 114 Atl. 136, 21 N. C. C. A. 276.

Texas.

Baker & L. Mfg. Co. v. Clayton (1905) 40 Tex. Civ. App. 586, 90 S. W. 519. England. Chew v. Jones (1847) 10 L. T. 231; Jones v. Page (1867) 15 L. T. N. S. 619; Vogan v. Oulton (1899) 81 L. T. N. S. 435, 16 Times, L. R. 37-C. A.; Mowbray v. Merryweather [1895] 2 Q. B. 640, 65 L. J. Q. B. N. S. 50, 14 Reports, 767, 73 L. T. N. S. 549, 44 Week. Rep. 49, 59 J. P. 804-C.

A.

In Sutton v. Temple (1843) 12 Mees & W. 52, 152 Eng. Reprint, 1108, 13 L. J. Exch. N. S. 17, 2 L. T. 102, 7 Jur. 1065, which was an action for rent under a lease of real property, Lord Abinger states that if a person hires anything in the nature of goods and chattels, he must undoubtedly furnish

goods which are fit for the use and purpose intended.

It has been held that the implied warranty is limited to an obligation that the article is reasonably suitable for the uses or purposes known by the lessor to be intended. Baker & L. Mfg. Co. v. Clayton (Tex.) supra.

In an action to recover the rental under such contract, the lessee may interpose as a defense a breach of the implied warranty. Southern Iron & Equipment Co. v. Smith (1914) 257 Mo. 226, 165 S. W. 804; Williamson v. Phillipoff (1914) 66 Fla. 549, 52 L.R.A. (N.S.) 412, 64 So. 269; HOISTING ENGINE SALES Co. v. HART (reported herewith) ante, 536; Chew v. Jones (1847) 10 L. T. (Eng.) 231.

Or he may recoup any expense to which he has been put by reason of such breach. Leach v. French (1879) 69 Me. 389, 31 Am. Rep. 296; Harrington v. Snyder (1848) 3 Barb. (N. Y.) 380.

And a breach of the implied warranty is a sufficient defense to an action for damages for loss or destruction of the chattel, resulting from such breach.

Bass v. Cantor (1890)

123 Ind. 444, 24 N. E. 147; Famous Players Film Co. v. Salomon (1918) 79 N. H. 120, 106 Atl. 282.

And where a liability has been imposed on the lessee or bailee for damage or injury caused by a defect in the article hired, against which a warranty is implied, he is entitled to recover the amount of such liability from the lessor or bailor. Jones v. Page (1867) 15 L. T. N. S. (Eng.) 619; Vogan v. Oulton (1899) 81 L. T. N. S. (Eng.) 435, 16 Times L. R. 37C. A.; Mowbray v. Merryweather [1895] 2 Q. B. (Eng.) 640, 65 L. J. Q. B. N. S. 50, 14 Reports, 767, 73 L. T. N. S. 459, 44 Week. Rep. 49, 59 J. P. 804-C. A.

A contract of hire of a specific chattel implies a contract that the owner thereof will not, after the agreement, and while the chattel remains in his possession, use or treat it in any way which will render it unfit for the service which is to be performed, and that he will take such care of it as is reasonable, having regard for the purpose for which it is, under the con

tract, to be used. Robertson v. Amazon Tug & Lighterage Co. (Eng.) infra, III.

Specific instances.

In Williamson v. Phillipoff (1914) 66 Fla. 549, 52 L.R.A. (N.S.) 412, 64 So. 269, in an action at law for damages alleged to be due for the hire of a lighter, the court overruled the demurrer to a plea which alleged that the plaintiff rented the lighter to the defendant, knowing that it was to be used in the work of erecting a bridge, for which purpose, unknown to the defendant, it was unsuitable, and that afterwards, without any fault on his part, the lighter sprang a leak and that, upon request, the plaintiff refused to repair the same, and, upon tender thereof, refused to accept the same, holding that the bailor, by the bailment, impliedly warrants that the thing hired is of the character and in a condition to be used as contemplated by the contract, and is liable for damages occasioned by the fault or defects of the article hired.

And a like rule of implied warranty was implied in an action to recover the value of a motion picture film which had been destroyed by fire while in the possession of the defendant, under a lease binding him to return it in the same condition it was in when received by him, the destruction thereof being due to the defective condition in which the film was sent by the plaintiff. Famous Players Film Co. v. Salomon (1918) 79 N. H. 120, 106 Atl. 282. The court stated that it was a well-recognized and established principle of law that if one hires to another an article for a certain purpose, there is an implied warranty that it shall be reasonably fit for that purpose.

And HOISTING ENGINE SALES Co. v. HART (reported herewith) ante, 536, holds that a written lease of hoisting machinery, which refers to the purpose for which the machinery is to be used, and where it is to be used, signifies that the lessor knew that the defendant had contract work to do, and that the equipment was to be used on that work, and implies the warranty that the machinery is fit for the per

formance of the specified work for which it is leased.

In an action for damages for the death of a mare hired by the plaintiff to the defendants to be used in operating a street railroad, caused through the alleged negligence of the defendants' servants, the court in Bass v. Cantor (1890) 123 Ind. 444, 24 N. E. 147, held that an instruction to the jury that, if they found from the evidence that the plaintiff hired his mare to the defendants for use in the operation of a railroad, he thereby engaged and bound himself that the mare was reasonably fit and suitable for such purpose, and if, therefore, the death of the mare while being used by the defendants was without their fault, and through her nervousness and fretfulness, or because of her diseased condition at the time of the hiring, or her unfitness for the use hired, the jury should find for the defendants, taken in connection with other charges that the defendants were only required to use reasonable care, and that if, after having tried the mare at such work, they found that she was plainly unfitted therefor, they had no right to abuse her and continue her at such work as would endanger her life and health, properly stated the law.

In Gleason v. Smith (1886) 39 Hun (N. Y.) 617, in holding that in the absence of an express agreement to keep the machinery in repair, or a representation that it was adapted to a particular use, no recovery could be nad for repairs to an engine selected by the lessee's agent, and hired to the lessee by the plaintiff, the court stated that if the engine had been hired to perform a special or particular service, a warranty might be implied as to the sufficiency of the machinery for the purpose for which it was hired.

In an action growing out of a rental contract by which tents were let for a Fourth of July celebration, it was held error to charge the jury to the effect that the lessor impliedly warranted that the tents were suitable for the purposes for which they were rented, for the real extent of the lessor's liability in this respect

is an implied obligation that the tents are reasonably suitable for the uses or purposes known to be intended. Baker & L. Mfg. Co. v. Clayton (1905) 40 Tex. Civ. App. 586, 90 S. W. 519.

Under a contract which by its terms provides for the rental of locomotives to be used in construction service and warrants that the engines have been recently overhauled and are in firstclass operative condition, it is error, in an action to recover rent claimed to be due under the contract, to instruct the jury that if they find from the evidence that the engines, when delivered, were in first-class operative condition, they shall find for the lessor, even though they may further find, as a matter of fact, that the engines rented were not suitable for, and would not do, the work mentioned in the contract. Southern Iron & Equipment Co. v. Smith (1914) 257 Mo. 226, 165 S. W. 804. The court stated that the lessor's theory that if the engines in question were mechanically in firstclass condition, its part of the contract had been fully performed and it was entitled to recover, was clearly erroneous, for the reason that it totally ignored the fact that the contract provided that the locomotives were leased for construction purposes, and that they had been recently overhauled and were in first-class condition for that work.

In Harrington v. Snyder (1848) 3 Barb. (N. Y.) 380, holding that the hirer of a horse, known by both parties to be lame, under an express agreement as to the journey to be performed and the length of time required for it, could, in an action against him for the hire of the horse, recoup the expense which he was compelled to incur on the return journey because of the inability of the horse to travel and the necessity of procuring other means of conveyance, the court said: "The rights and liabilities of the parties are to be determined by the rules applicable to the fifth species of bailment, as it is described in the elementary books. 2 Kent, Com. 585; Story, Bailm. 374. The main obligations of the letter to

hire, deduced from the nature of the contract, are: to deliver the thing to the hirer; to refrain from every obstruction to the use of it by the hirer, during the period of the bailment; to do no act which shall deprive the hirer of the thing; to warrant the title and right of possession to the hirer, in order to enable him to use the thing, or to perform the service; to keep the thing in suitable order and repair for the purposes of the bailment; and finally, to warrant the thing free from any fault inconsistent with the proper use or enjoyment thereof."

In Leach v. French (1879) 69 Me. 389, 31 Am. Rep. 296, the court quoted Harrington v. Snyder (N. Y.) supra, as holding that one who lets a horse impliedly warrants that the animal is capable of performing the duty for which it is let, and if, without fault of the hirer, it becomes disabled, any expense incurred on that account may be recouped against the demand of the bailor for its services.

From the contract of letting or hiring a horse for the purpose of a particular journey, a warranty is implied that the horse is fit, proper, and competent for such journey, and if the animal, without fault of the hirer, falls lame on the journey, the hirer may leave it in care of someone, giving notice of this fact to the owner, and since it was not fit and competent for the journey, the hirer need not pay anything. Chew v. Jones (1847) 10 L. T. (Eng.) 231. Nor is the selection of the animal by the hirer from other horses in the stable of any effect, for the owner is still supposed to warrant that it is fit. For subsequent proceeding, see (1847) 10 L. T. 268.

In Vogan v. Oulton (1899) 81 L. T. N. S. (Eng.) 435, 16 Times L. R. 37 -C. A., the bailor hired out sacks to the plaintiff to be used in unloading a ship, and, due to a defective condition in one of the sacks, a third person was injured, who in an action against the plaintiff recovered damages for his injury, and in an action against the bailor, brought to recover damages for breach of warranty that the sacks were fit and proper to be used for the purpose for which they

were hired, the court permitted a recovery for the damages and loss which the plaintiff had incurred by reason of the defective sack.

And in Jones v. Page (1867) 15 L. T. N. S. (Eng.) 619, a liability had been imposed upon the plaintiff, who had hired a carriage from the defendant for the purpose of carrying people to the races, for injuries sustained when the carriage broke down, and the court allowed the plaintiff to recover from the defendant the amounts which he had been compelled to pay his passengers on this account, holding that the law implied a contract that the carriage was reasonably fit for the specific purpose for which it was hired.

In Mowbray v. Merryweather [1895] 2 Q. B. (Eng.) 640, 65 L. J. Q. B. N. S. 50, 14 Reports, 767, 73 L. T. N. S. 459, 44 Week. Rep. 49, 59 J. P. 804 -C. A., the bailor leased to the plaintiff derrick cranes and winches and other gearing, which were to be used for the purpose of discharging a ship's cargo, and in affirming a judgment for the bailee against the bailor for the amount the former was compelled to pay to an employee who was injured by reason of a defect in some of the gearing leased the court held that the bailee had the right to rely upon an implied warranty that the article bailed was suitable for the purpose for which it was known to be intended, namely, the unloading of the ship; and that, as regards the bailor, he owed no duty of examination, although his negligence in not making an examination and discovering a defect was the ground upon which his liability to the employee was based.

And in Swigert v. Graham (1847) 7 B. Mon. (Ky.) 661, it was stated that the bailment of property on hire for a particular use or service implied the right on the part of the bailee to use it in that service in the ordinary way, unless at some particular period or part of the service there should be special circumstances rendering such use improper, and the hirer is bound only to exercise that degree of care and attention for the

preservation of the thing which is ordinarily observed, and this principle was applied to the case of a hired slave who was injured while working on a boat, who, the court said, could be expected to care for his own safety in ordinary circumstances, in view of the implied condition that he was capable of observation, experience, knowledge, and skill.

A bailor who hires out an automobile is liable to a third person for damages occasioned to him by reason of a collision caused by a defect in the steering gear of the hired machine. Collette v. Page (1921) 44 R. I. 26, 18 A.L.R. 74, 114 Atl. 136, 21 N. C. C. A. 276, holding that one who, for hire, lets an automobile to be operated on the public highway, is bound to use ordinary care to see that the steering gear is in a reasonbly safe condition to prevent injury to others lawfully using the highway. The court stated that the bailor impliedly warrants that the thing hired is of the character and condition contemplated by the contract, and is liable for damages occasioned by the faults or defects of the article hired. III. Lease or bailment of specified chat

tel; opportunity to inspect.

In case of a lease or bailment of a known or designated chattel, which the bailee has seen or has had the opportunity of inspecting, the law does. not imply a warranty of reasonable fitness or capability of the chattel; at least, if there is no reference in the contract to the specific use to which it is to be put. Builders' Brick & Supply Co. v. Walsh Transp. Co. (1919) 106 Misc. 460, 174 N. Y. Supp. 690, affirmed in (1919) 189 App. Div. 898, 178 N. Y. Supp. 881; Peterson v. Jahn Contracting Co. (1917) 96 Wash. 210, 164 Pac. 937; Garrettson v. Rinehart & D. Co. (1915) 75 W. Va. 700, 84 S. E. 929; Robertson v. Amazon Tug & Lighterage Co. (1881) L. R. 7 Q. B. Div. (Eng.) 598, 51 L. J. Q. B. N. S. 68, 46 L. T. N. S. 146, 30 Week. Rep. 308, 4 Asp. Mar. L. Cas. 496 -C. A.

Thus, in Builders' Brick & Supply Co. v. Walsh Transp. Co. (N. Y.) supra, it was held that the law does not