It is the judgment of this court that the judg ment of the court below be reversed, and that the case be remanded to that court for a new trial.

custom, accords with the view that the beds | tion of government and the preservation of of such channels below low-water mark are the peace. In the administration of govern not held by the state simply as vacant lands, ment, the use of such power may, for a limsubject to grant to settlers in the usual way ited period, be delegated to a municipality through the land office. There seems to be or other body; but there always remains with no doubt, however, that the state, as such the state the right to revoke those powers, trustee, has the power to dispose of these and exercise them in a more direct manner, beds as she may think best for citizens; but, and one more conformable to its wishes. So not being, as it seems to us, subject to grant with trusts connected with public property in the usual form, under the provisions of or property of a special character, like lands the statute regulating vacant lands, it would under navigable waters; they cannot be seem to follow that, in order to give effect placed entirely beyond the direction and con. to an alienation which the state might under- trol of the state. take to make, it would be necessary to have a special act of the legislature, expressing in terms and formally such intention. See also Illinois Cent. R. Co. v. Illinois, 146 U. S. 458, 36 L. ed. 1044, in which it is said: "A grant of all the lands under the navigable waters of a state has never been adjudged to be within the legislative power; and any attempted grant of the kind would be held, if not absolutely void on its face, as subject to revocation. The state can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them en- After a careful consideration of this petitirely under the use and control of private tion, we are unable to perceive that any maparties, except in the instance of parcels men- terial fact or principle of law has either been tioned for the improvement of the navigation overlooked or disregarded, and hence there and use of the waters, or when parcels can is no ground for a rehearing. It is therefore be disposed of without impairment of the ordered that this petition be dismissed, and public interest in what remains, than it can that the stay of the remittitur heretofore abdicate its police powers in the administra-granted be revoked.

McIver, Ch. J., and McGowan, J., con.

cur.

A petition for rehearing was subsequently filed in response to which on September 13, 1894, the following opinion was handed down:

Per Curiam:

KANSAS SUPREME COURT.

DIEBOLD SAFE & LOCK CO., Piff. in Err., | plaintiffs claimed to have purchased of defen

•Plaintiffs ordered from the defendant a No. 4 fireproof safe. The order was in writing. It contained no reference to a warranty. A safe was delivered in compliance with the order, and received and used by the plaintiffs to store valuable papers. The building in which it was kept was afterwards destroyed by fire, and some of the contents of the safe were consumed. Held: (1) That parol evidence was inadmissible to prove a warranty made at the time the order was given; (2) that the words "fireproof safe" do not imply a warranty of the quality of the safe, or that it will protect its contents from fire for any definite period or under any given circum

dant under a warranty that it was fire proof. Reversed.

Statement by Allen, J.:

This case was commenced before a justice of the peace of the city of Seneca, and the plaintiffs obtained judgment for $172 and costs. The defendant appealed to the district court, where an amended petition was filed, alleging, in substance, that the plaintiffs, on or about the 25th of July, 1889, purchased of the Diebold Safe & Lock Company a No. 4 Diebold safe, which was represented and guaranteed to be fire-proof, for which the plaintiffs agreed to pay $72, one fourth cash, and the balance in three equal payments; that on the 18th day of January, 1890, the building in which the safe was situated was burned, and the contents of the safe, consisting of notes and accounts, and contracts, and other valuable papers, contained in said safe, RROR to the District Court for Nemaha were burned; and asking judgment for $247. County to review a judgment in favor of J. L. Breeding, one of the plaintiffs, testiplaintiff in an action brought to recover dam-fied that "the agent warranted it to be fireages for loss by fire of papers in a safe which proof. He stated that the company always did that; that they guaranteed all their Headnote by ALLEN, J. safes." He also testified that at the same

stances.

ERR

(April 6, 1895.)

NOTE.-In connection with the valuable briefs of counsel in the above, see other authorities on the Bame subject as to excluding oral proof of warranty on a written contract of sale in note to Hobart v. Young (Vt.) 12 L. R. A. 693.

time a duplicate contract was entered into for the purchase of the safe. The one of these duplicates signed by the plaintiffs was introduced in evidence, and reads as follows: Seneca, July 23, 1889. Brintnall & Harri

66

Wasson v. First Nat. Bank of Indianapolis, 107 Ind. 206.

The description or name by which goods are sold is a warranty that the goods are such as are known or pass by that description or name. It is not a warranty as to their quali ties, nor of their fitness for a specific use or purpose.

572.

No engagement of this sort can be implied against the vendor, save where the contract is partially or wholly executory, and in such event, it is not in the nature of a warranty, but an implied stipulation, forming part of the 'essence of the contract.

Rodgers v. Niles, 11 Ohio St. 48, 78 Am. Dec. 296; Mason v. Chappell, supra; Prentice v. Dike. 6 Duer; 220; Hoe v. Sanborn, 21 N Y. 552, 78 Am. Dec. 163; Howard v. Hoey, 23 Wend. 350, 35 Am. Dec. 572; Richardson v. Grandy, 49 Vt. 22, Barr v. Gibson, 3 Mees, & W. 390; Burnby v. Bollett, 16 Mees. & W. 644; Keates v. Earl of Cadogan, 10 C. B. 591; Mis ner v. Granger, 9 Ill. 69.

son, General Agents, Diebold Safe and Lock Company: Please send me as soon as convenient one No. 4 fire-proof safe, approximate size inside 19 inches high, 15 inches wide, 12 inches deep, as per page 8 of illustrated catalogue, and plan of interior as specified on back of this order. Marked to Huston & Breeding, town of Seneca, county of Nemaha, state of Kansas. Ship via town of St. 2 Sutherland, Damages, 410, 411, and cases Joseph, and rent same to undersigned on fol- cited; Chanter v. Hopkins, 4 Mees. & W. 399; lowing terms: F. O. B. cars in Seneca, Olivant v. Bayley, 5 Q. B. 288; Camac v. WarKas. $72.00, as follows: $18.00 upon arriner, 1 C. B. 356; Mason v. Chappell, 15 Gratt. rival; balance in 3 notes, of $18.00 each, due, respectively, in 3, 6, & 9 months from shipment. Said safe to be one of your latest styles, with all your latest improvements, and to be as per illustrated catalogue. Front of safe to be a dark wine color, and finished in gold, and to be nicely finished and ornamented in your latest style. This order subject to the approval of Brintnall & Harrison. All notes given are to bear interest at the rate of eight per cent per annum. It is agreed above sums are to be paid as rent for said safe. When the full amount of $72.00 is paid, you are to give me a bill of sale of safe. If note is not forwarded to you at the expiration of twenty days from date of invoice, all rent shall become due at the expiration of thirty days from date of bill, and agree to accept and pay draft of amount mentioned below, and are not to countermand or attempt to annul this contract. It is agreed that the title of said safe shall not pass until notes are paid or safe paid for in cash, but shall remain your property until that time. In default of payment of said rent, you or your agent may take possession of and remove said safe without legal process. Nothing but shipment or delivery constitute an acceptance of this contract. It is also hereby expressly agreed and understood that the foregoing embodies all the agreements made between us in any way, hereby waiving all claims of verbal or other agreements of any nature not embodied in this contract. I hold a duplicate copy of above contract. Agents not authorized to make collections. Amount, $72.00. Truly yours, Huston & Breeding. Witness:

The jury rendered a verdict in favor of the plaintiffs for $247, for which amount the judgment was entered. The defendant brings the case to this court.

It may be doubted whether there is 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 vendee with its unfitness may be evidence of fraud, and thus render the vendor liable in an action of tort.

Kingsbury v. Taylor, 29 Me. 508, 50 Am. Dec. 607; Humphreys v. Comline, 8 Blackf. 516; Emerson v. Crigham, 10 Mass. 197, 6 Am. Dec. 109; Howell v. Cowles, 6 Gratt. 393; Dickson v. Jordan, 33 N. C. 166. 53 Am. Dec. 403; Maynard v. Maynard, 49 Vt. 297.

Or it may serve as a defense in an action for the price.

Perry v. Johnston, 59 Ala. 648; Owens v. Dunbar, 12 Ir. L. Rep 304; Dickson v. Zizinia, 10 C. B. 602; Burnby v. Bollett, supra.

The contract made by defendants in error with Brintnall & Harrison was for a "fireproof safe," and they were bound to furnish a safe known or which passed by that description or name, and none other.

2 Sutherland, Damages, 410, 411, and cases cited.

The written contract is presumed to contain the entire contract.

Warner v. Thompson, 35 Kan. 27; McMullen v. Carson, 48 Kan. 263; Rich v. Northwestern Cattle Co. 48 Kan. 197; 2 Rice, Ev. p. 1316, and authorities cited; Herring v. Skaggs, 62 Ala. 180, 34 Am. Rep. 4, 73 Ala. 446; Chicago, K. & W. R. Co. v. Fisher, 49 Kan. 460; White v. Miller, 71 N. Y. 133, 27 Am. Rep. 13.

Where the seller knows nothing of the reasons of the purchase or the circumstances or condition of the purchaser, the measure of damages is the difference between the value of the article delivered in the condition it then was, and that of the article which in its perfect and complete condition the party intended to purchase; and good faith on the part of the seller is presumed.

Weybrich v. Harris, 31 Kan. 92; Wheeler & Wilson Mfg. Co. v. Thompson, 33 Kan. 491;

Mr. E. G. Wilson, for defendants in error: The evidence of the agent's representation neither contradicts nor varies the terms of the written contract (order of sale), even if such an instrument comes within the inhibition contended for by the plaintiff in error.

Irwin v. Thompson, 27 Kan. 643.

A sale of an article for the vendor's manufacture for a particular purpose imports a warranty that the machine is reasonably fit for that purpose, and to be free from latent defects arising in the process of manufacture and not disclosed to the vendor.

Hoult v. Baldwin, 67 Cal. 610; Allen v. Truesdell 135 Maes. 75; Hadley v. Baxendale, 9 Exch. 341; Hammer. Schoenfelder, 47 Wis.

455.

The loss of the contents of the safe "may fairly and reasonably be considered as naturally arising from the breach of the contract, according to the usual course of things and the increased expense caused the injured party by the breach, as well as all other substantial inconveniences from that cause are legitimate elements of damage."

5 Am. & Eng. Encyclop. Law, p. 18.

Great Western Printing Co. v. Tucker, 73 Iowa, | the plaintiffs in compliance with the terms 75); Hoe v. Sanborn, 36 N. Y. 93; Muller v. of the written order. Does this order contain Eno, 14 N. Y. 606; Voorhees v. Earl, 2 Hill, what in law amounts to a warranty? There 288, 38 Am. Dec. 588; Cary v. Gruman, 4 are no words in it of express warranty. Does Hill, 625, 40 Am. Dec. 299; Sanborn v. Her an order, however, for a fire-proof safe, imring (N. Y.) 6 Am. L. Reg. N. S. 457; Herring ply a warranty? It is contended that this is ▼. Skaggs, supra; Walrath v. Whittekind, 26 à case of a sale of an article of the vendor's Kan. 482; Missouri Pac. R. Co. v. Pierce, 33 manufacture for a particular purpose, and Kan. 61; Dowell v. Williams, 33 Kan. 319. imports a warranty that it is reasonably fit for that purpose, and free from latent defects arising in the process of manufacture, and not disclosed to the vendor. In the case of Lukens v. Freiund, 27 Kan. 664, 51 Am. Rep. 429, it appeared that the defendant was a miller; that two copper clasps accidentally fell into some bran which was sold to the plaintiff. The clasps were swallowed by one of the plaintiff's cows, and killed her. It was held that, in the absence of express warranty, the plaintiff could not recover for his cow. The second clause of 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 liabil ity determined accordingly." There is nothing in this case indicating that the safe purchased by the plaintiffs was manufactured specially for them, but the fair inference is that it was one of a kind of safes which the defendants manufactured for sale to whomsoever would buy. It is designated in the order as a "No. 4 fire-proof safe," and the The plaintiff testified to an oral warranty order provides that it shall be one of the dethat the safe was fire-proof, by the agent of fendant's latest styles and improvements; the defendant. It will be observed that the thus clearly indicating that.it is one of a written order for the safe, made at the time, kind of safes manufactured by the safe and expressly provides that the title should re- lock company. "There is in America an immain in the defendant until the full purchase plied warranty of identity; namely, that the price should be paid. The evidence shows article shall be of the kind or species it purthat $18 was paid at the time of the delivery ports to be or is described to be, that is, of the safe, and that the first note was after that the article delivered shall be the same wards paid. At the time of the fire, two thing contracted for." Benjamin, Sales, 6th notes still remained unpaid, and the title to ed. 636. This proposition is illustrated in the property, therefore, was still in the de- the following cases: In Henshaw v. Robins, fendant. There could not, then, be a tech-9 Met. 83, 43 Am. Dec. 367, a sale and bill nical warranty of the article sold. It is not of parcels of two cases of indigo was made. necessary, however, to nicely inquire into It was shown that the article paid for and the difference in the mode of recovering dam- delivered was not indigo at all, but composed ages for a breach of warranty and those re- of Prussian blue, chromate of iron, and potsulting from the use of an article furnished ash, and worthless for any purpose. for a particular purpose under a bailment. held that the description of the article inThe only question we deem it necessary to serted in the bill of parcels amounted to a decide is whether, under the testimony, any warranty that the article was such as represuch warranty was made as would entitle the sented. In Hawkins v. Pemberton, 51 N. Y. plaintiffs to recover irrespective of the tech- 198, 10 Am. Rep. 595, it was held that the nical question. It appears from the plain sale of an article as blue vitriol amounted tiff's own evidence that the agreement which to a warranty that it was such. In Wolcott he entered into with the agent of the safe v. Mount, 36 N. J. L. 262, 13 Am. Rep. 438, and lock company was reduced to writing. it was held that a sale of seed which the seller Oral evidence, therefore, is inadmissible to said was early strap-leaf, red-top turnip seed vary or enlarge its terms. Drake v. Dods- was equivalent to a warranty that it was worth, 4 Kan. 160; Brenner v. Luth, 28 Kan. 581; Hopkins v. St. Louis & S. F. R. Co. 29 Kan. 544; Furneaux v. Exterly, 36 Kan. 539; Phelps & Bigelow Windmill Co. v. Piercy. 41 Kan 763; Willard v. Ostrander, 46 Kan. 591. It is clear that the safe was delivered to

Allen, J., delivered the opinion of the

Court:

It was

such, and that the purchaser might recover the difference between the market value of the crop raised and the same crop from such seed as was ordered. In White v. Miller, 71 N. Y. 118, 27 Am. Rep. 13, it was held that, on a sale of "large Bristol cabbage

The seed proved worthless, and

seed" to a market gardener, there was an v. Smith, 45 Kan. 334, 11 L. R. A. 681, was implied warranty that the seed was not only on a contract for the sale of flax-seed, which raised from such stock, but free from any the buyer agreed to sow, and sell the crop latent defect arising from the mode of culti-to the seller on certain terms stated in the vation, and would produce that kind of cab-contract. bage. In Jones v. George, 61 Tex. 345, 48 Am. Rep. 280, it was held that a sale by a druggist to a planter of an article as Paris green implied a warranty that it was that substance.

did not grow. It was held that under the contract, and in view of the purposes for which it was purchased, the buyer might recover as upon a warranty. In that case the purposes of the contract did not end with the delivery of the seed to the buyer, for he was obligated to sow the seed, and to sell the crop which it might produce to the vendor. Under such a contract, it was held that a warranty of the fitness of the seed for the purposes specified in the contract would be implied.

There is no doubt, under the authorities, that the article sold must answer in kind to the description under which it is sold, and that there is an implied warranty that the article delivered is such an article as the name under which it is sold indicates. When, however, the question arises whethe. an article is of a particular quality or de- In the case under consideration the plaingree of excellence, unless it is designated by tiffs ordered a fire-proof safe. There is no some term which is descriptive of the article proof, nor was it in fact claimed at the trial, and calls for a particular quality, the gen- that the article delivered did not answer the eral rule is that no warranty of quality will description; that is, that it was not such an be implied. In Wolcott v. Mount, supra, it article as is generally known and designated was said: "In general, the only contract as a "fire-proof safe." The evidence shows which arises on the sale of an article by a that it was manufactured and placed on the description, by its known designation in the market in the same way that other fire-proof market, is that it is of the kind specified." safes were made. "Fire-proof" is defined In Winsor v. Lombard, 18 Pick. 57, it was by Webster: "Proof against fire; incomheld that, where a large number of barrels bustible." The case of Hickey v. Morrell, of mackerel branded under the inspection 102 N. Y. 454, 55 Am. Rep. 824, was an laws as No. 1 and No. 2 mackerel were sold action against a warehouseman to recover for in the spring with that description of them goods destroyed by fire in a warehouse repin the bill of parcels, it was not a warranty resented to have a fire-proof exterior. It that the mackerel were free from rust, al- appeared that the window frames and sash though it appeared that mackerel affected by were wooden, and that there were no outside rust are not considered as No. 1 and No. 2. shutters, and it was held that the building In Gossler v. Eagle Sugar Refinery, 103 Mass. could not be deemed fire proof. In the course 331, it was held that "one who agreed to sell of the opinion it is said: "Here the allega'Manilla sugar' to refiners, and delivered to tion is that the exterior of the building is them what is usually called in commerce by fire-proof. It necessarily refers to the qualthat name, can, in the absence of fraud, ity of the material out of which it is conmisrepresentation, or warranty, recover the structed, or which forms its exposed surface. agreed price, though the article delivered To say of any article it is fire-proof conveys contained more impurities than sugar known no other idea than that the material out of under that name usually does." The case of which it is formed is incombustible.' In Shisler v. Baxter, 109 Pa. 443, 58 Am. Rep. the case of Knoxville F. Ins. Co. v. Hird, 4 738, seems to be opposed to White v. Miller, Tex. Civ. App. 82, in an action on a fire supra, holding that the sale of seed as Wake-insurance policy which stipulated "that the field cabbage seed did not amount to a war-assured would keep his books in a fire-proof ranty that it was such, but was a representation as to quality. In Towell v. Gatewood, 3 I. 22, 33 Am. Rep. 437, a bill of sale of good first and second rate tobacco was made. The court refused to treat this as a warranty, but rather as an expression of opinion as to the quality of the article sold, concerning which the buyer should have relied on his own judgment or obtained an express warranty. The mere description of iron sold as mill iron in a bill rendered to the pur chaser will not amount to a warranty that the same is of the quality or grade described, but will be regarded as a mere statement or expression of opinion as to the quality." Carondelet Iron Works v. Moore, 78 111. 65. See also, Ryan v. Ulmer, 108 Pa. 332, 56 Am. Rep. 210; Dounce v. Dow, 64 N. Y. 411. In Fraley v. Bispham, 10 Pa. 320, 51 Am. Dec. 486, it was held that a sale bill of superior sweet-scented Kentucky leaf to bacco affords no evidence from which the jury may infer a warranty that it is either superior or sweet scented. The case of Shaw

"

safe, and that in case of loss he would produce the books, and on failure to so produce them the policy would become void. The books were in good faith kept in a safe of the kind generally known and reputed as fire-proof, but which failed to preserve them from destruction by fire. Held, that the insured had not warranted the safe to preserve the books, and that he complied with the condition."

It is not claimed in this case that the safe itself was constructed of combustible materials, nor that it was burned, or even greatly damaged by fire. The plaintiffs seek to recover solely for damages resulting from the burning of articles deposited in the safe. There was no contract or representation with reference to the degree of heat, or the length of time when exposed to a fire, against which the safe would afford protection. Safes denominated as "fire proof" are made of var ious sizes, capacities, and styles. If the outside be made of iron, while that metal is commonly regarded as incombustible, be

cause it will not burn, yet it is not inde- for more than three times the price of the structible by fire. It is a matter of common safe. We are of the opinion that it was inknowledge that iron will melt when sub-cumbent on the plaintiffs to inspect the safe, jected to a sufficient degree of heat. To im- when they received it, for the purpose of ply a warranty that the safe would protect ascertaining whether it was of the kind speciits contents against any given exposure to fied in the order; that, if it was so, no warfire, we think, would be to imply a warranty ranty of quality was implied, and no reof quality, and that altogether indefinite in covery can be had for the destruction of its its terms, and imposing a liability which contents. might be immensely disproportionate to the sum received. The recovery in this case was

MASSACHUSETTS SUPREME JUDICIAL COURT.

Whart. Confl. L. § 690; Leroux v. Brown, 12 C. B. 801; Pritchard v. Norton, 106 U. S. 134,

Horace H. BURBANK, Exr., etc., of Eliza 27 L. ed. 107; Hoadley v. Northern Transp. Co.

EXCEPTIONS by Plain Middlesex County dead oral property is within the statute of

Acts 1888, chap. 372. There is no doubt of the general principles Even assuming that this was a Maine con- to be applied. A contract valid where it is tract, and also assuming that it was valid un-made is valid everywhere, but it is not necder the Maine laws, yet it would be unenforce-essarily enforceable everywhere. It may be able in this state.