that the vibrating ends of the lowest and longest reeds in No. 21 were as near together as they are in the reed-boards of alleged infringing organs. It results from these considerations that the decree of the circuit court must be reversed, and the case be remanded to that court, with direction to dismiss the bill. (110 U. S. 108) KELLOGG BRIDGE Co. v. HAMILTON. (January 14, 1884.) CONTRACT TO BUILD BRIDGE-PARTIAL EXECUTION-SUBLETTING CONTRACT TO COMPLETE-IMPLIED WARRANTY. A bridge company, having partially executed a contract for the construction of a bridge, entered into a written agreement with a person, whereby the latter undertook, for a named sum, and within a specified time, to complete its erection. The subcontractor agreed to assume and pay for all work done and material furnished up to that time by the company. Assuming this work to have been sufficient for the purposes for which it was designed, the subcontractor proceeded with his undertaking, but the insufficiency of the work previously done by the company was disclosed during the progress of the erection of the bridge. No statement or representation was made by the company as to the quality of the work it had done. Its insufficiency, however, was not apparent upon inspection, and could not have been discovered by the subcontractor until actually tested during the erection of the bridge. Held, that the law implied a war. ranty that the work sold or transferred to the subcontractor was reasonably sufficient for the purposes for which the company knew it was designed. In Error to the Circuit Court of the United States for the Northern District of Ohio. Richard Waite and E. T. Waite, for plaintiff in error. HARLAN, J. The Kellogg Bridge Company, which brings this writ of error and was defendant below, undertook to construct, for the Lake Shore & Michigan Southern Railroad Company, an iron bridge across Maumee river, at Toledo, Ohio. After doing a portion of the work it entered into a written contract with Hamilton, the defendant in error, for the completion of the bridge under its directions. That contract is the basis of this action and contains, among others, these stipulations: "That the said party of the first part [Hamilton] hereby agrees to furnish and prepare all the necessary false work and erect the iron bridge now being constructed by the said party of the second part [the Kellogg Bridge Company] for the Lake Shore and Michigan Southern R. R. Co., at Toledo, Ohio, over the Maumee river, receiving said bridge material as it arrives on the cars at the site of said bridge and erecting the same in the best manner, according to the design of said bridge and the directions of said second party, from time to time, commencing the erection of said work when required to do so by said second party, and proceeding with the same with a force sufficient to complete the entire work on or before the first day of March next; the said first party also agrees to assume and pay for all work done and materials furnished up to the time of executing this contract, including piling and piles, timber, and other materials and labor done on the same, but not including bolts and washers which have been furnished by the party of the second part, but to return said bolts and washers to the said second party, or pay for the same on completion of said bridge. And the said first party in consideration of the payments hereinafter mentioned, to be made by said second party, agrees to perform all the stipulations of this agreement in a through and workmanlike manner and to the satisfaction of the second party. And if at any time the said second party is not satisfied with the manner of performing the work herein described, or the rapidity with which it is being done, the second party shall have full power and liberty to put on such force as may be necessary to complete the work within the time named, and provide such tools or materials for false work as may be necessary, and charge the cost of the same to the said first party, who agrees to pay therefor." In consideration of the faithful performance of these stipulations, Hamilton was to receive from the Bridge Company $900 on the completion of the first span, a like sum on the completion of the second span, $800 on the completion of the third span, and $1,403 on the completion of the draw and the entire work-such payments to be made only on the acceptance of each part of the work by the chief engineer of the Lake Shore & Michigan Southern Railroad Company. The bridge which Hamilton undertook to erect consisted of three independent fixed spans, each to be 175 feet 6 inches in length, suspended between and resting at each end of the span upon stone piers, which had been prepared to receive the same, and one draw span of 185 feet in length, resting upon a pier in the center, also then prepared. In erecting the several spans it was necessary to build and use what the contract describes as "false work," which consisted of piles driven in the river between the piers upon which the spans were to rest, and upon which was placed a platform. As indicated in the written contract, the bridge company had previously constructed a part of this false work between the first and second spans, the cost of which Hamilton paid, as by the contract he agreed to do. Assuming this work to be sufficient for the purposes for which it was designed, Hamilton proceeded to complete the erection of the bridge according to the plans furnished him. There was evidence before the jury tending to establish the following facts: A part of the false work or scaffolding put up by the company sank under the weight of the first span, and was replaced by Hamilton. When the second fixed span was about two-thirds completed, the ice, which before that had formed in the river, broke up in consequence of a flood, carrying away the false work under that span, and causing the whole of the iron material then in place on the span, or on the span ready to be put in place, to fall in the river, which at that place was about 16 feet deep. If the piles driven by the bridge company had been driven more firmly into the bed of the river, they would have withstood the force of the ice and flood. In consequence of the insufficiency of the false work done by that company, Hamilton was delayed in the completion of the bridge and subjected to increased expense. In this action his claim is that the company is liable, not only for the amount specified in the contract, but also for such damages as he sustained by reason of the insufficiency of the false work it constructed. Charging defendant with these amounts, and crediting it with such sums as had been paid to or for Hamilton, a balance of $3,693.78 was claimed to be due the latter. Defendant, by way of counter-claim, asked judgment against Hamilton for $6,619.70. There was a verdict and judgment in favor of plaintiff for $3,039.89. It is insisted by the defendant in error that the value of the matter really in dispute here is less than the amount requisite to give this court jurisdiction. Upon this ground a motion to dismiss was heretofore made, and was denied. To that ruling we adhere. Upon the pleadings it is apparent that the defendant asserts its right to judgment for $6,619.70 after crediting plaintiff, not only with the sum specified in the contract, but with every other sum to which he is entitled in the accounting. This is conclusive as to our jurisdiction. upon this writ of error. It was not claimed on the trial, nor is it contended here, that the company made any statement or representation as to the nature or character of the false work it did, and which, by the contract, Hamilton agreed to assume and pay for. But there was evidence tending to show that the insufficiency of that false work was unknown to Hamilton at the time the contract was made; was not apparent upon any examination he then or could have made; and was not discovered, indeed, could not have been discovered, until, during the progress of the erection of the bridge, the false work was practically tested. The court, among other things, instructed the jury, at the request of plaintiff, and over the objections of the defendant, that by the contract-looking at all the circumstances attending its execution and giving to its terms a fair and reasonable interpretation-there was an implied warranty upon the part of the company that the false work it did, and which plaintiff agreed to assume and pay for, was suitable and proper for the purposes for which the bridge company knew it was to be used. This instruction was accompanied by the observation that if the evidence showed "that the particular work which was said to be defective was such that the plaintiff could not by examination ascertain its defects-for if they were apparent by mere examination of the false work it was the duty of the plaintiff to make that good-he had the right to rely upon the implied warranty; that is, if the defects were such that they could not be, by ordinary observation and care on behalf of the plaintiff, ascertained and found out." That instruction presents the only question we deem necessary to determine. Although there are several assignments of error, they depend, as counsel for plaintiff in error properly concede, upon the inquiry whether the court erred in ruling that by the terms of the contract there was an implied warranty that the false work constructed by the bridge company was suitable and proper for the purposes for which it was to be used by Hamilton. The argument in behalf of plaintiff in error proceeds upon the ground that there was a simple transfer by the company of its ownership of the work and materials as they existed at the time of the contract; that Hamilton took the false work for what it was, and just as it stood; consequently, that the rule of caveat emptor applies with full force. The position of counsel for Hamilton is that, as in cases of sales of articles by those manufacturing or making them, there was an implied warranty by the bridge company that the work sold. or transferred to Hamilton was reasonably fit for the purposes for which it was purchased. The cases in which the general rule of caveat emptor applies are indicated in Barnard v. Kellogg, 10 Wall. 388, where, speaking by Mr. Justice DAVIS, the court observed that "no principal of the common law has been better established, or more often affirmed, both in this country and in England, than that in sales of personal property, in the absence of express warranty, where the buyer has an opportunity to inspect the commodity, and the seller is guilty of no fraud, and is neither the manufacturer nor grower of the article he sells, the maxim of caveat emptor applies." An examination of the ground upon which some of the cases have placed the general rule, as well as the reasons against its application, under particular circumstances, to sales of articles by those who have manufactured them, will aid us in determining how far the doctrines of those cases should control the one before us. The counsel for the bridge company relies upon Parkinson v. Lee, 2 East, 314, as illustrating the rule applicable in ordinary sales of merchandise. That case arose out of a sale of five pockets of hops, samples of which were taken from each pocket and exhibited at the time of sale. The question was whether, under the circumstances of that case, there being no express warranty and no fraud by the seller, there was an implied warranty that the commodity was merchantable. It was resolved in the negative upon the ground that it was the fault of the buyer that he did not insist on a warranty; the commodity was one which might or might not have a latent defect, a fact well known in the trade; and since a sample was fairly taken from the bulk, and the buyer must have known, as a dealer in the commodity, that it was subject to the latent defect afterwards appearing, he was held to have exercised his own judgment and bought at his own risk. But of that case, it was observed by Chief Justice TINDAL in Shepherd v. Pybus, 3 Man. & G. 880, that two of the judges participating in its decision laid "great stress upon the fact that the seller was not the grower of the hops, and that the purchaser, by the inspection of the hops, had as full an opportunity of judgment of the quality of the hops as the seller himself." There was, consequently, nothing in the circumstances to justify the buyer in relying on the judgment of the seller as to the quality of the commodity. It is also worthy of remark that in Randall v. Newson, 2 Q. B. Div. 106, it was said of Parkinson v. Lee, that "either it does not determine the extent of the seller's liability on the contract, or it has been overruled." In Brown v. Edgington, 2 Man. & G. 279, the plaintiff sought to recover damages resulting from the insufficiency of a rope furnished by the defendant upon plaintiff's order, to be used, as defendant knew, in raising pipes of wine from a cellar. The defendant did not himself manufacture the rope, but procured another to do so, in order that he, defendant, might furnish it in compliance with plaintiff's request. TINDAL, C. J., said: "It appears to me to be a distinction well founded, both in reason and on authority, that if a party purchases an article upon his own judgment he cannot afterwards hold the vendor responsible, on the ground that the article turns out to be unfit for the purpose for which it was required; but if he relies upon the judgment of the seller, and informs him of the use to which the article is to be applied, it seems to me the transaction carries with it an implied warranty that the thing furnished shall be fit and proper for the purpose for which it was designed." In Shepherd v. Pybus, supra, the question was whether, upon the sale of a barge by the builder, there was a warranty of fitness for the purpose for which it was known by the builder to have been purchased. It was held that the law implied such a warranty. The ground of the decision was that the purchaser had no opportunity of inspecting the barge during its construction, having seen it only after completion; that the defects afterwards discovered were not apparent upon inspection, and could only be detected upon trial. In Jones v. Just, L. R. 3 Q. B. 203, upon an extended review of the authorities, the court classified the adjudged cases bearing upon the subject of implied warranty, and said that "it must be taken as established that on the sale of goods by a manufacturer or dealer, to be applied to a particular purpose, it is a term in the contract that they shall reasonably answer that purpose, and that on the sale of an article by a manufacturer to a vendee who has not had the opportunity of inspecting it during the manufacture, that it shall be reasonably fit for use or shall be merchantable, as the case may be." Other cases might be cited, but these are sufficient to show the general current of decision in the English courts. The decision in the American courts do not indicate any substantial difference of doctrine. A leading case upon the subject, where the authorities were cafully examined and distinguished, is Hoe v. Sanborn, 21 N. Y. 552. The decision there was that "where one sells an article of his own manufacture which has a defect produced by the manufacturing process itself, the seller must be presumed to have had knowledge of such defect, and must be holden, therefore, upon the |