Opinion by
Beaver, J.,In November, 1889, the plaintiff shipped the defendants from their works in Canada, apparently in the usual course of trade, seven barrels of plumbago known in the trade as No. 6. Subsequently in January, 1890, one of the defendants visited the mines, mills and warehouses of plaintiff and, after an inspection of the material on hand, ordered ten tons of the plumbago of the quality No. 6 and one ton of Nos. 3, 4,5 and 6 mixed. The shipment as made embraced forty-two barrels of No. 6, twenty barrels of No. 5, ten of No. 4, ten of No. 3, eight of Nos. 3 to 6 mixed — a total of ninety barrels, aggregating 22,982 pounds. The grade contained in each barrel was plainly marked on the *42outside. The consignment was all received by defendants and its receipt acknowledged — no objection being made to the overweight or to the fact that the shipment was not in exact accordance with the order, so far as the grade was concerned. The acknowledgment of the receipt of the consignment was made by the defendants by letter dated January 15,1890. Subsequently on January 23,1890, defendants wrote another letter in which serious complaint of the quality of the plumbago is made and in which occur these significant statements : “ These brands which contain so much mica we cannot use at all and, if we cannot find a market for it, we will hold it subject to your order,” and later, “ Even the first shipment that you sent us in November of seven barrels was of a better quality than any of the last shipment.” There is no allegation that there was any subsequent return or offer to return any of the plumbago and the first shipment was not then claimed to be a sample lot.
We have been thus careful in stating the facts, because a complete understanding of them enables us very readily to dispose of the assignments of error, all of which relate to the rejection of offers of testimony on the part of the defendant as to the use to which the plumbago in question was put, its unfitness for that use and the use for which it had been purchased, and the general instruction to find for the plaintiff.
It is to be observed: 1. There is no charge of fraud in the sale and shipment of the materials which are the subject of controversy. 2. There is no claim of an express warranty as to their quality.
The defendants rely upon an implied warranty which they say arises from two distinct facts: 1. The purchase of seven barrels of- plumbago by defendants from plaintiff was a sample order and, under the provisions of the Act of April 13,1887, P. L. 21, an implied warranty arose as to the subsequent shipment. The difficulty here is that it nowhere appears that this was a sample order and the fact of its having been such is disproved, if that were necessary, by the visit and inspection by one of the defendants who carefully examined the plaintiff’s plant and facilities and saw and examined the identical stock from which the latter shipment was made. 2. The plaintiff knew that the material was to be used in the manufacture of *43crucibles and this knowledge raised an implied warranty under the well known rule that “ if an article is ordered for a special purpose and is sold for that purpose, there is an implied warranty that it is for that purpose: ” Port Carbon Iron Co. v. Groves et al., 68 Pa. 149; McCormick v. Nicholson, 17 Pa. Superior Ct. 188. But the defendants did not bring themselves within the rule. Not only was the purchase made upon their own inspection but their cross-examination of the plaintiff showed not only that he did not know that the plumbago was to be used in the manufacture of crucibles, although he had general knowledge that the defendants were in that business, but that they also sold plumbago when it did not suit their purpose, and this is borne out by their own letter hereinbefore referred to.
Having failed to show any facts from which an implied warranty could be legitimately drawn, the. defendants’ offers were all properly rejected and, having used all the material purchased and no return or offer to return any of it having been shown, the instruction by the court to find for the plaintiff was proper.
Judgment affirmed.