This suit was brought by the Pittsburg Clay Pot Company, a body corporate, against the Queen City Glass Company, also a corporation, to recover the price of seventeen clay pots sold by the former to the latter. The declaration contains the usual money counts. A plea denying the right of the Pittsburg Company to sue in the Courts of this State, because of its failure to comply with the provisions of ch. 270 of the Acts of Assemblyof 1898 was put in, which later on appears to have been demurred to; whereupon, under leave obtained, amended pleas of never promised, never indebted and payment were filed. The case then went to trial before a jury and resulted in a verdict for the plaintiff, the Pittsburg Company, upon which verdict a judgment was entered and from that judgment this appeal was taken. There is but one bill of exceptions in the case and that brings up for review the rulings on the prayers for instructions to the jury.
The Clay Pot Company is engaged in the manufacture of clay pots for use in glass factories. The Queen City Glass Company carries on the business of making glass bottles. In the prosecution of that business clay pots about five feet high, four feet wide, with walls four inches thick, are used to melt and hold the materials of which glass is composed. The clay pots when shipped from the establishment where they are made are unburnt. When needed for use by the glass factory they are placed in what is called a pot arch and subjected to an intense heat reaching two thousand degrees, and are kept there *Page 438 for several days. This process is called annealing. When annealed the pots are quickly transferred from the pot arch to the glass furnace where they are filled with the materials out of which glass is made, and those materials are brought by the heat to a molten state, so that the glass blowers may fashion and shape the glass into bottles. In the process of annealing, some eight or nine of the seventeen pots, for the price of which this suit was brought, cracked, broke, warped, bulged or melted down and flattened out in the pot arch and thus were rendered useless; whilst four or five of them, which had stood the annealing, cracked and broke in the glass furnace after two or three fillings and the remainder lasted a much shorter time than such pots should be serviceable. It was shown in evidence that when the pots broke in the glass furnace the molten glass which they contained was spilled and wasted, causing a loss of two hundred dollars, and the molten material ran down into the eye of the furnace, cut the grate-bars and damaged the furnace to such an extent as to necessitate the expenditure of one hundred and fifty dollars for repairs. It was further shown that the employees of the Glass Company were skillful and competent and that they had used care in annealing the pots. It was proven that the pots were made of clay brought from Germany, Missouri, Kentucky, Pennsylvania and other places and that other ingredients were used in mixing the clay according to a secret formula known to the Pittsburg Company. In the nature of the case therefore it was impossible for the purchaser to discover any defects in the pots before they were placed in the annealing furnace, because no inspection could reveal any imperfections in their make up or in the composition of the material of which they were constructed. The evidence further showed that inasmuch as nothing could be discovered by inspection, about the quality of the pots or as to their fitness for the use for which they were intended, the Glass Company was compelled to trust to and rely upon the manufacture and the manufacturer for their quality and fitness; and that the Pittsburg Company knew exactly to what use the Glass Company intended to apply them and what treatment in heating *Page 439 them would be necessary to put them in condition for use in the glass furnace. On the account rendered and upon which the suit is founded there is a credit of five per cent allowed as a discount "in lieu of guarantee;" but this entry was explained by one of the witnesses to mean "merely a deduction for guaranty against breakage in transit and not in satisfaction of any breakage of the pots in the pot arch or furnaces."
At the conclusion of the evidence the plaintiff presented one prayer and the defendant three for instructions to the jury. The plaintiff's prayer was granted, but those of the defendant were rejected and in their stead the trial Court gave two instructions of its own. Those are the rulings of which error is predicated.
The prayer granted at the instance of the plaintiff, the appellee in this Court, proceeded upon the theory that if there was an express or implied warranty on the part of the vendor it was a warranty that the "pots were reasonably fit for the purpose of being heated in" the "retort or annealing furnace to be prepared for use in the melting of glass." The defendant'sfirst prayer after setting forth hypothetically the facts substantially as we have narrated them, concluded with the legal proposition, deducible therefrom, that "said pots when sold to the defendant were sold upon an implied warranty on the part of the plaintiff that they were fit and serviceable for," first, annealing or heating in the retorts, and, secondly, for heating and for retaining molten glass in the usual way of the manufacture of glass articles in the defendant's works. The difference between the two prayers lies in this: By the plaintiff's the warranty extended no further than the annealing of the pots and did not cover their use in the glass furnace; whilst by the defendant's first prayer the warranty included both of the uses for which the pots were intended and were furnished, viz., annealing and capacity or ability to hold the molten glass. Upon these two prayers two questions arise and they are: First, Was there a warranty? Secondly. If there was, what is its scope and extent?
First: There is no pretense that there was an express warranty. *Page 440 Does an implied warranty arise by operation of law out of the circumstances of the case? We need not go farther than the Maryland Reports to find an answer to that question. In Rice v.Forsyth, 41 Md. 403, this Court adopted aud approved the proposition laid down in Jones v. Just, L.R. 3 Q.B. 197, as follows: "Where a manufacturer contracts to supply an article which he manufacturers to be applied to a particular purpose so that the buyer necessarily trusts to the judgment or skill of the manufacturer, there is in that case an implied term or warranty, that it shall be reasonably fit for the purpose to which it is to be applied. In such a case the buyer trusts to the manufacturer or dealer and relies upon his judgment and not upon his own." SeeOsgood v. Lewis, 2 H. G. 524; 1 Parsons on Cont., 468;Johnson v. Cope, 3 H. J. 89; Hyatt v. Boyle, 5 G. J. 110; Gunther and Rodewald v. Atwell, 19 Md. 157; Wheat v.Cross, 31 Md. 99.
We think it is quite clear that the proposition just quoted is applicable. The evidence already referred to, if credited by the jury, demonstrates that the purchaser was compelled to rely on the skill and judgment of the manufacturer. The pots were formed of several species of clay. The clays were mixed according to a secret formula and they were made into form and shape by hand, the process involving the addition of successive layers of the material. It was impossible for the purchaser to know by an inspection or otherwise whether the various component elements had all been used, or if used whether they had been used in proper proportions; or whether they had been skillfully manipulated; or whether the formula had been observed. Actual use of the pots was the sole method by which a defect could be discovered. They were manufactured for a special purpose which was known to the vendor, and the vendee was bound to trust to the manufacturer and to rely on his judgment. There could not well be a condition of circumstances more obviously within the doctrine of implied warranty.
Secondly: What is the scope and extent of the implied warranty? The instruction given at the instance of the Pittsburg *Page 441 Company, limited the warranty to the annealing process; whilst the rejected first prayer of the Glass Company extended the warranty to the use of the clay pots in the glass furnace. If there was a warranty at all, upon what principle can it be said that it has been fulfilled or complied with if the thing warranted to be fit for a designated use, disintegrates or breaks down either before it has been put to that use or in the very act of being used for the purpose for which it was designed? The clay pots were purchased to be used in the manufacture of glass bottles. Their ultimate use was, therefore, in the glass furnace. The annealing process was merely preliminary to their final use. Without being annealed they were of no value to the purchaser. After being properly annealed they were in a condition to be used in the glass furnace provided they were free from inherent and hidden defects, and if when thus used they cracked and permitted the molten glass to escape, they obviously were unfit for the purpose to which they were to be applied and for which they had been manufactured and had been bought. It cannot be said that they were bought merely to be annealed, because both vendor and vendee knew perfectly well their real use was to hold in a fused state and at a high temperature the materials composing the glass. An implied warranty arising as this one did, to be a warranty at all must be co-extensive with the use to which the thing warranted is intended to be put; and the use to which the clay pots were designed to be put, as previously stated, was the melting of glass in the glass furnace, and not the mere annealing of the pots; and this both buyer and seller fully understood. Many cases have been referred to on the brief of the appellant to illustrate this view, but it is not deemed necessary to do more than name them, or rather some of them, without quoting from them. Cochran v. Jones, 65 Ga. 678; Shaw v. Smith, 45 Kans. 334; Omaha Coal C. L. Co. v. Fay, 37 Neb. 68; and the copious notes to McQuaid v. Rose et al., 22 L.R.A. 187.
According to the conclusion just stated there was error in granting the appellee's instruction and in rejecting the appellant's *Page 442 first prayer. The appellant's second prayer includes but part of the ground covered by the first. The granting of the first would render the second unnecessary.
The appellant's third prayer relates to recoupment. Upon the assumption that the warranty extended to the clay pots in the glass furnace after they had been annealed in the retorts, the purchaser, the Glass Company, was entitled to recoup against the vendor's claim the amount of damages sustained by the vendee in consequence of a breach of the warranty. Crook, Horner Co. v.B. O.R.R. Co., 80 Md. 338; Harman v. Bannon, 71 Md. 424. The third prayer should, therefore, have been granted.
The instructions given by the Court in lieu of the defendant'sfirst and second prayers were at variance with the first of those two prayers, and for the reasons which have induced us to hold that the defendant's first prayer should have been granted, the instructions given by the Court ought not to have been given. Because of the errors indicated, that is to say, because of the granting of the plaintiff's prayer, the rejection of the defendant's first and third prayers and the granting of the Court's two instructions, the judgment must be reversed and a new trial will be awarded.
Judgment reversed with costs above and below and new trialawarded.
(Decided June 30th, 1903.) *Page 443