The sole question involved in this appeal is: Was there an implied warranty on the part of the plaintiff that the pipe sold was free from defects, discoverable by proper inspection? If there was such implied warranty against defects, discoverable by proper inspection, there being no dispute that there were defects in the pipe, which were discovered after such pipe had been used in the construction of the water system, the law of the case was not properly submitted to the jury. If, on the other hand, there was not such an implied warranty on the part of the plaintiff that the pipe in question was free from such defects, the court properly charged the law.
The contract of purchase provides "that the pipe to be shipped was to be subject to the inspection of the engineer of the city of Ryan." This court must construe, and not make, contracts; and the purchaser having contracted that the pipe was subject to the inspection of the engineer of the city of Ryan, and said pipe having been inspected and accepted by said engineer, there was no implied warranty as against defects, discoverable by proper inspection, that the pipe was adapted to the use for which it was intended. That the engineer of the city of Ryan by reason of incompetency or carelessness failed to discover the defects in said pipe, and which he might have discovered by proper test, applied when he made the inspection, was the misfortune of the defendant, said inspection being, in effect, the act of said defendant; and any loss that may have resulted by the use *Page 114 of said pipe, by way of laying, removing, and replacing said pipe, cannot be visited upon the plaintiff. Especially is this true, in view of the fact that the evidence does not disclose that the defects in said pipe would not have been disclosed by a proper inspection made by a competent person.
" 'The fundamental inquiry must always be whether, under the cricumstances of the particular case, the buyer had the right to rely, and necessarily relied, on the judgment of the seller, and not upon his own' (Kellogg Bridge Co. v. Hamilton,110 U.S. 108, 3 Sup. Ct. 537, 28 L.Ed. 86), in order to ascertain if there is an implied warranty." (Walrus Mfg. Co. v. McMehen,39 Okla. 667, 136 P. 772, 51 L. R. A. [N. S.] 1111.)
The inspection, being under said contract by the city engineer, who, in effect, was acting for said defendant, who did not rely upon the judgment of the seller, but upon his own, and, having had the right and means of inspection, he is bound by the contract.
In Stanford et al. v. National Drill Mfg. Co.,28 Okla. 441, 114 P. 734, it is held:
"Certain vendees contracted with the manufacturer in writing to buy and pay for a well-drilling outfit, made by the latter and described in its catalogue, at an agreed price. Before this contract was made, the vendees informed the agent of the vendor that they wanted a drilling machine to bore in a certain designated area in New Mexico for artesion water, and the agent of the manufacturer assured them that the outfit would bore to a certain specified depth in such country. But the written contract was silent upon this subject. The vendees relied upon this assurance of the agent, and made the contract. The machinery was without defect as to quality and construction. Held, that there was no implied warranty that the drill and its machinery would bore in the specified area in New Mexico to a certain depth." *Page 115
Judge Brewer, in Brown v. Davidson, 42 Okla. 598,142 P. 387, approves the holding of the territorial Supreme Court in the case of Brown v. Beard et al. 5 Okla. 133, 48 P. 180, wherein it is said in the syllabus:
"Where there is no express warranty accompanying a description of personal property, and the buyer, after inspection and full opportunity to examine, accepts the property, he is estopped from afterwards claiming damages for failure to comply with the description."
This rule works no hardship. Upon receipt of the pipe, if, upon inspection, it was found that any part of it did not come up to specifications as contained in the contract of sale, the defendant could have so advised the seller and repudiated the sale. But if, after the inspection of the pipe, as provided by the contract, he accepted and used the same, he cannot legally ask damages upon the ground that there were defects in the pipe.
We think the court in its third instruction properly instructed the jury as to the law of the case. The reason that instruction No. 3, requested by the defendant, was properly refused, was that there is no evidence that the defects in the pipe could not have been discovered by proper inspection, prior to its use in constructing said waterworks.
The foregoing views also make it manifest that there was no error in refusing to give requested instructions Nos. 1 and 2.
This case should be affirmed.
By the Court: It is so ordered. *Page 116