The facts are as follows: At the time without removing it therefrom. Conceding stated in the complaint, and for a number that the printed matter upon the face of of years prior thereto, plaintiff was, and had the wheel was sufficient to constitute a warbeen, engaged in the business of blacksmith- ranty, we are unable to concur in the coning, in and about which business it was nec- tention that it was the warranty of defendessary to make use of an emery wheel for the ants. A warranty consists in representations purpose of sharpening tools. On the 1st and statements of and concerning the condiof October, 1901, he purchased of defendants tion and quality of personal property, the subsuch a wheel, and removed it to his place of ject of sale, made by the person making the business, and there made use of it. About sale to induce and bring it about. So far as October 30th of the same year, when engaged the evidence in the case at bar shows, nothin operating the wheel in sharpening tools, ing whatever was said between the plaintiff the same broke, and a piece therefrom struck and defendants concerning the condition or plaintiff, and severely injured his person. quality of this wheel, whether it was capable The complaint alleges that defendants repre- of making 1,800 revolutions per minute, or sented and warranted, at the time of the sale any other number of revolutions, or as to of the wheel, that the same was well made, whether it was fit and suitable for any parof good material, and capable of making ticular purpose. Attention was not called 1,800 revolutions per minute; and that by either party to the alleged printed warplaintiff relied upon such representations and warranty in making the purchase. This action was brought for damages, on the theory that the injury to plaintiff was the direct result of a defect in the wheel, and that defendants were liable as for a breach of the alleged warranty..

The only question we deem necessary to consider is whether the evidence establishes the allegations of the complaint that defendants warranted the wheel at the time of the sale. It was not manufactured by defend ants, who were wholesale and retail dealers in heavy hardware, and kept wheels of the kind in stock for sale to the trade; but was manufactured by the Northampton Emery Wheel Company, of Massachusetts, from which company defendants purchased it, with others, in the usual course of trade. A printed card was placed by the manufacturers upon the face of the wheel, which contained the words "Northampton Emery Wheel Co.," the word "Speed," and opposite thereto the figures "1,800," indicating, as claimed by plaintiff, that the wheel was cap able of being safely operated at the rate of 1,800 revolutions per minute. There were other words upon the card, together with the word "Warranted." This card was upon the wheel at the time it was purchased by plaintiff, and the contention of plaintiff is that the same constituted and amounted to a warranty on the part of defendants in respect to its quality and speed capacity; that, although it may have been placed upon the wheel by the manufacturers, defendants adopted it as their own by making the sale

v.

ranty, and, for aught that appears from the record, the same was not noticed by either at the time of the sale. Clearly, under such circumstances, the placard cannot be held to be the warranty of defendants, and to hold that they adopted the representations purporting to be thus made would be going far beyond any case to which our attention has been called. Whether the manufacturers would be liable to plaintiff upon this warranty, either upon the ground of neglect in the manufacture of the wheel or for a breach of warranty, is wholly irrelevant to the question. If it be granted that the manufacturers would not be liable, it by no means follows that defendants are. We are clear that the mere sale of the wheel by defendants with the printed matter pasted thereon, without other act or ceremony, did not amount to an express warranty on their part. The allegations of the complaint are not, therefore, sustained by the evidence, and the court correctly dismissed the action.

Neither can plaintiff recover upon the theory of an implied warranty. It may be, and doubtless is, true that there is an implied warranty in all cases where an article is manufactured and sold for a specific purpose that such article is fit and suitable for the purposes intended for it. But that rule can have no application to the case at bar, for plaintiff relies in his complaint, not upon an implied, but upon an express, warranty; and, besides, defendants were not the manufacturers of the wheel.

The order appealed from is affirmed.

NEBRASKA SUPREME COURT.

Alois WEBER, Sr., Plff. in Err.,
Charles H. LOCKMAN et al.
Neb........)

*A master may be liable in damages

*Headnote by AMES, C.

NOTE.-As to liability of master for injuries caused to third person by servant's disobedience of orders, see also, in this series, Consolidated Ice Mach. Co. v. Keifer (Ill.) 10 L. R. A. 696.

caused by negligence committed by his servant while in the course of his employment, although the latter may be at the time acting without the knowledge, or contrary to the known wishes, of the former.

(November 19, 1902.)

ERROR to the District Court for Cedar of plaintiffs in an action brought to recover County to review a judgment in favor damages for personal injuries caused by the negligence of defendant's son, for which de

fendant was alleged to be responsible. Af-352. 45 N. W. 715; Fitzsimmons v. Milfirmed. caukee, L. S. & W. R. Co. 98 Mich. 257, The facts are stated in the Commissioner's 57 N. W. 127; Cleveland v. Newson, 45 opinion. Mich. 62, 7 N. W. 222.

Edwards v. Crume, 13 Kan. 349; Baker hired servant named Schweimer. At the v. Morris, 33 Kan. 580, 7 Pac. 267.

breakfast table on a Sunday morning it was proposed to drive the animals to pasture on that day, so as to avoid interruption of Whether the servant was acting within work during the coming week, but the elder the scope of his employment and in further-Weber objected to this course solely on acance of his master's business is a question of fact, to be determined by the jury from the evidence before them.

along the road and down a hillside near the, a minor, riding his father's horse. It was residence of the defendant in error, whom his duty, after having executed his mission, they encountered in the highway, and whom to return the animal to his father's stables. the horse ridden by Alois ran over, causing Whatever negligence there was in departing the injuries on account of which the judg- from the direct route, or in delaying his rement was recovered. The court left it to turn until after nightfall, or in the managethe jury to say: First, whether the ac- ment of the horse at the time of the accicident was attributable solely to the negli- dent, was committed in the performance of gence of Alois; and, second, whether, if so, this duty and service. And, besides, it does such negligence should be imputed to the not appear that his departure from the diplaintiff in error as a master in the course rect route was in itself negligent, or that of whose service it occurred. The first ques- his visit to the young people in any way tion was one peculiarly within the province contributed to an accident which did not of the jury, and will not be further consid- occur until after the visits had ended and ered. The correct answer to the second he had resumed his homeward journey, and question is, we think, not difficult. The pur- thus returned to the strict line of his empose of the elder Weber to have the cattle ployment. If the fact of delay until after driven to the pasture as a part of the busi-nightfall contributed to the mishap, it was ness he was carrying on is not in dispute. that mere fact, and not the occasion for it, The only objection he made was as to the which did so. If it was negligent for the time when they should be driven, but he boy to ride after dark, it is immaterial does not appear to have positively forbidden what induced him to incur the risk. it to be done on the day mentioned. Even are satisfied that the answer given by the if he had done so, he would not thus have jury to this question is the only one which deprived the act of its character of having the evidence in the record is capable of supbeen done in his service. Disobedience in porting. The conclusion thus reached renthis regard would not have been different, ders unnecessary the consideration of asas respects its effect upon his liability, than signments of error in the giving and refusal would disobedience to his directions as to of instructions. The question of negligence the manner of driving the animals or the was rightly left to the jury, and the inferroute to be taken. Such disobedience is uni-ence that it occurred in the service of the versally held not to excuse a master from responsibility for the negligence of his servants. Cosgrove v. Ogden, 49 N. Y. 255, 10 Am. Rep. 361; Ellegard v. Ackland, 43 Minn. 352, 45 N. W. 715; Fitzsimmons v. Milwaukee, L. S. & W. R. Co. 98 Mich. 257, 57 N. W. 127; Cleveland v. Newson, 45 Mich. 62, 7 N. W. 222. The same principle applies to what occurred after the delivery of the cattle at the pasture. The boy was

plaintiff in error is inevitable.

We

It is recommended that the judgment of the district court be affirmed.

Albert and Duffie, CC., concur.

Per Curiam:

For the reasons stated in the foregoing opinion, it is ordered that the judgment of the District Court be affirmed.

NEW YORK COURT OF APPEALS.

Louis BECK, Respt.,

v.

CATHOLIC UNIVERSITY OF AMERICA,
Appt.,
And

Augustus C. DEXTER et al., Respts.

(172 N. Y. 387.)

Consent to the erection of buildings on

the land within the meaning of the mechanics' lien law, so as to make the property liable for liens after the contract has been forfeited and the vendor has resumed possession, is not shown by a clause in an executory land contract "that the vendee shall have a right to immediate possession" for the purpose of erecting buildings.

(November 11, 1902.)

NOTE. For a case in this series holding that the insertion in a contract for sale of real estate of a clause requiring vendee to erect buildings thereon sufficiently shows vendor's consent to such erection, so as to render his interest in

Statement by the Court:

The action was to foreclose a mechanic's lien upon real property owned by the appellant, situated on Riverside drive, in the city of New York. It consisted of six lots, which the appellant, by an executory contract, sold to the defendant Dexter for $100,000. Dexter employed the plaintiff to erect a building for a restaurant thereon, and out of this employment the plaintiff's claim arose, for which he filed a mechanic's the property liable for liens for labor and material, see Miller v. Mead (N. Y.) 13 L. R. A. 701. With this case is a note reviewing the cases on the New York mechanics' lien law.

lien, and which he sought by this action to | Dodd, 90 N. Y. 336; Kealey v. Murray, 40 foreclose. Several of the defendants filed N. Y. S. R. 23, 15 N. Y. Supp. 403; Schmalz liens against the property, which they also v. Mead, 125 N. Y. 188, 26 N. E. 251; sought to enforce in this action. In Decem- Miller v. Mead, 127 N. Y. 544, 13 L. R. A. ber, 1897, Dexter defaulted in payment under 701, 28 N. E. 387; Vosseller v. Slater, 25 his contract, his right to the property App. Div. 368, 49 N. Y. Supp. 478; National ceased, and the university took possession Wall Paper Co. v. Sire, 163 N. Y. 122, 57 thereof. The building upon the premises N. E. 293; Cowen v. Paddock, 137 N. Y. 188, was constructed while Dexter was in pos- 33 N. E. 154; Butler v. Flynn, 51 App. Div. session. The plaintiff recovered a judgment 225, 64 N. Y. Supp. 877; Steeves v. Sinclair, awarding him a lien thereon for $9,020.32, 56 App. Div. 448, 67 N. Y. Supp. 776; Rice the defendant, Hamilton, for $614.56, and v. Culver, 172 N. Y. 60, 64 N. E. 761; the defendants, Mackey and Smith, for the Cornell v. Barney, 26 Hun, 134. sum of $785. The judgment of the special term was affirmed by a divided court.

terials the basis of a mechanic's lien upon the building, especially in the absence of any notice or knowledge on the part of the owner from which such consent can be implied. After reviewing several authorities in this court, it was there said: "Thus it seems that the requirements of this statute as to consent are not met by a mere general agreement to the effect that a third person may, at his own expense, make alterations in a building occupied by him. The statute requires more. It requires either that the owner shall expressly consent to the particular alteration made, or that, with a knowledge of the particular object for which they are employed, he acquiesces in the means adopted for that purpose.' In the DeKlyn Case it was decided that the consent necessary under the mechanic's lien law, to render the owner liable for work done or materials furnished, will not be implied from a mere acquiescence by the owner in the alterations, in the absence of any affirmative act or declaration on his part which might have misled the lessee or contractor. It was there said: "The owner's interest in his real estate is not liable in every case in which, to his knowledge, labor and materials are furnished for erections upon his real property or alterations in the existing erections. Consent is not

consent was as follows: "It is further un- | terations, so as to make such labor and maderstood and agreed that the vendee shall have the right of immediate possession to the property hereinbefore mentioned and described for the purpose of erecting buildings thereon." Obviously, the only effect of that provision was to give the vendee the right of possession, which he would not otherwise have had, and it cannot be regarded as a consent under the provisions of the lien law to the erection of the building constructed by Dexter. It is to be observed that, while there was consent by the vendor that the vendee should have the right of possession for the purpose of erecting buildings thereon, there was no consent whatever to the construction of the particular building erected. It is quite evident that the university had knowledge of the fact that the defendant Dexter intended to improve the property by the erection of a building thereon. There was, however, no proof of any knowledge upon its part as to the character of the building to be erected, of the erection of the building constructed, or that the university acquiesced therein. Proof of the existence of that knowledge was insufficient to establish a consent, under the lien law, to the erection of any building which the vendee should conclude to or did erect. The decision of the learned appellate division in that respect is in direct conflict with the later decisions of this court. Vosseller v. Slater, 25 App. Div. 368, 372, 49 N. Y. Supp. 478, Affirmed in 163 N. Y. 564, 57 N. E. 1127; Havens v. West Side Electric Light & P. Co. 49 N. Y. S. R. 771, 20 N. Y. Supp. 764, Affirmed in 143 N. Y. 632, 37 N. E. 827; Hankinson v. Vantine, 152 N. Y. 20, 29, 46 N. E. 292; De Klyn v. Gould, 165 N. Y. 282, 286, 59 N. E. 95; Rice v. Culver, 172 N. Y. 60, 64 N. E. 761.

a vacant or neutral attitude in respect of a question of such material interest to the property owner." In Rice v. Culver the authorities relating to the subject were quite exhaustively examined, and we held that, to constitute the consent mentioned in the statute, the owner must either be an affirmative factor in procuring the improvement to be made, or, having possession and control of the premises, assent to the improvement in the expectation that he will receive the benefit of it. This review of the authorities discloses that the consent relied upon by the respondent was insufficient to justify the court in holding the land of the university liable to the liens sought to be enforced in this action. Therefore there was in this case no evidence to justify the trial court in finding that the labor and materials performed and furnished by the lienors were furnished with the consent of the university. It thus appearing that there was no evidence which, according to any reasonable view, supports the finding of the trial court, and as the affirmance by the appellate division was not unanimous, the question whether there was any evidence to support that finding raises a question of law which the court of appeals may review. Ostrom v. Greene, 161 N. Y. 353, 55 N. E. 919.

The Vosseller Case was quite similar to the case at bar. It was there held that the property of the vendor was not subject to a mechanic's lien upon the buildings erected or altered by the vendee. In that case it was said: "It would be a most unusual statute, and of doubtful validity, which should provide that in case a vendor sells real estate by an ordinary executory contract of sale, knowing that the vendee intended to erect a building thereon, the vendor's interest should be charged with a lien for the expense of erecting a building, and so improve the vendor out of his estate." In that case, as in this, there was no provision in the contract which required the vendee to make the improvements which were made upon the premises. In the Havens Case it was held that the mere fact that a landlord may know that his tenant contemplates making certain improvements, or ap- While there were several other questions plying the property to certain purposes, can- presented upon the argument and in the not make the former liable for the expense briefs of counsel, still, as the judgment must of such work. The Hankinson Case is to be reversed upon the ground that there was the effect that a mere general consent of an no valid consent by the owner which made owner that the lessee in occupation may, at its land liable for the liens placed thereon, his own expense, make alterations in a build- no discussion of those questions seems necesing occupied by him, does not constitute a sary. It may, however, be remarked that consent by the owner that a third party the admission of the evidence as to the acts shall furnish labor or materials for the al-'and declarations of Dahlgren was clearly er