The plaintiffs were manufacturers of steel, at Pittsburgh, in the State of Pennsylvania, and had an office in. the city of E"ew York. The defendants were manufacturers of axes, at Baldwinsville, in this State. On the 25th of April, 1868, the plaintiffs wrote to the defendants a letter, in which they offered to sell them ten tons of best axe cast steel, which they would warrant equal in quality to any brand- of English cast steel. On the 31st of July, 1868, the defendants reply to the foregoing letter, in which they say they are going to try and use the plaintiffs’ steel; that which they had used worked very well; and ordering ten tons of certain sizes to be sent, two and a half tons per month, the first installment to be sent by the 15th of August. On the 3d of August the plaintiffs acknowledged the receipt of the de*142fendants’ letter, and in a postcript to their letter, say: “We will warrant ours to be equal in quality to Jessup’s or. any other standard brand.” Ten tons of steel were sent forward to the defendants, and made into axes, which proved to be of an inferior quality, by reason, as the defendants allege, and as the referee finds, of the inferior quality of the steel. The referee has allowed as damages, the difference in value between the axes made from the plaintiffs’ steel, and axes made from the best quality of English steel. The plaintiffs insist that this rule of damages is erroneous, and that the defendants were entitled to the difference between the price paid, and the market price of the best English steel.
The principal question on this appeal is, is the measure of damages adopted by the referee the correct one ? . If not, the judgment must be reversed,- and a new trial granted.
Parsons, in his work on Contracts, (vol. 1,p. 469,) says, if a thing be ordered of a manufacturer for a special purpose, and it be supplied and sold for that purpose, there is an implied warranty that it is fit for that purpose. The plaintiffs were manufacturers, and the defendants ordered the steel for the purpose, of being made into axes. The case is thus brought within the principle asserted by Parsons, and the referee was justified in finding a warranty that the steel would make as good axes as the best English steel. The name of the defendants’ company was “ Axe and Tool Company.” This was notice to the plaintiffs of the use to'which the steel was to be applied, and the warranty must be held to be that the steel would make either axes or tools of as good quality as the best English. The case of Jones v. Bright, (5 Bing. 5.33,) is almost identical, in its facts, with the one before us. There-the defendant was a manufacturer and vender'of copper, and the plaintiff applied to him for copper for sheathing a vessel; *143the defendant replied he would serve him well. The cop-' per was received by the plaintiff and put on his vessel, but proved to be defective by reason of some latent defect, and it was held there was an implied warranty that the article was 'fit for the purpose for which it was sold. In this class of warranties' the measure of damages is the difference between the value of the defective article made from the defective material furnished, and the value of the article if made from the material as represented. (Passinger v. Thorburn, 34 N. Y. 634. Milburn v. Belloni, 39 id. 53.) In other words, the measure of damages in this case would be the difference in value between the axes made from the defective steel, and their value if the steel had been equal to the best English steel. This is the rule applied by the referee.
It is insisted by the plaintiffs’ counsel, that the defendants persisted in making axes from the plaintiffs’ steel after it was ascertained that the steel was of bad quality, and that they ought not to be allowed damages after such notice. I agree with the counsel ill his proposition, but it does not appear by the evidence that the defendants did persist in making axes after they knew of the bad quality of the steel. The only evidence I find on the subject is that of one of the witnesses who says he tried one of the axes in January or February 1869, and found it defective. They commenced making from the plaintiffs’ steel in December 1868, and made up the whole quantity in four months. Defects in a single axe, or even-100 axes, would not, it would seem from the evidence, be conclusive evidence that the steel was of bad quality, as it appears that large numbers made from the best English steel proved defective and were returned. There is no data-before us, nor was there any before the referee that enabled him to find that the defendants manufactured axes after notice that the steel was unfit for the purpose.
*144[Fourth Department, General Term, at Rochester, January 2, 1871.Eone of the objections taken by the plaintiffs’ counsel to the admission of evidence were well founded.
The judgment must be affirmed.
Mullin, P. J., and Johnson and Talcott, Justices.]