¶1The opinion, of the court was delivered by
¶2The questions presented by the exceptions arise under the first count in the declaration, in which the plaintiff declares upon a warranty.
¶3The plaintiff requested the court to charge the jury that “where produce requiring skill in the manufacture thereof, as in the case, of the manufacture of butter and cheese, and especially where the same were subject to latent defects that could not be discovered by the. purchaser, was sold by the manufacturer thereof, to a dealer for a special purpose, then made known to the seller, and a sound price , was paid for the article, the law would imply a warranty that the. article was fit for such purpose.” The court declined so to charge the jury, and charged the reverse. In this we think there was error.
¶4The principle seems to be now well settled by the authorities, that when the manufacturer of an article sells it for a particular purpose, the purchaser making known to him at the time the purpose for which he buys it, the seller thereby warrants it fit and proper for such purpose, and free from latent defects. The law therefrom implies a warranty of the fitness of the article for the purpose. Certainly so, if the unfitness of the article for the particular purpose, is occasioned by any want of skill or care, or is the result of any defect, from any cause, in the process of its manufacture ; that is, he warrants it to be as fit and suitable for the purpose indicated, as any good, sound, well made article of its kind would be.
¶5This principle is fully discussed and decided in Jones v. Bright, 5 Bing. 533, and in other cases referred to by council in the course of the argument, and which it is not necessary to cite here.
¶6In this case the cheese which is the subject of controversy, was manufactured by the defendant. It was purchased by the plaintiff for. the purpose of being shipped to a foreign country, and that purpose was made known to the defendant at the time.
¶7*436The evidence on the part of the plaintiff tended to show, that at the time of the sale of the cheese by the defendant, many of them were unsound and defective by reason of their being infested with maggots, of which unsoundness the plaintiff was ignorant. No question is made but what if this unsoundness existed in fact, it resulted from a want of care and attention on the part of the manufacturer in manufacturing, and bringing them into a marketable condition. The evidence also tended to show, that the defect, if it existed, was a latent one, as the defendant himself swore that he was ignorant of it, and that it did not in fact exist. If the defect existed and the defendant was ignorant of it, it is not probable that it could have been discovered without a very critical examination.
¶8The plaintiff’s evidence also tended to show, that this defect rendered the cheese unlit to be sent to a foreign market, and it would seem to render it equally unfit for any other market, either in the cities of this country, or for sale at home; but however that may be, the evidence tended to show that it was unfit for the purpose for which it was bought, and that the defect resulted from the fault of the defendant in its manufacture. Thus tending to show a case clearly within the rule heretofore laid down, and entitled the plaintiff to a charge to the jury substantially such as he requested.
¶9Other questions have been discussed on the hearing, but as the conclusion to which we have come upon this point, results in a reversal of the judgment, and a new trial, we do not pass upon them.
¶10Judgment reversed and case remanded.