concurring.
I concur in the judgment of reversal upon the sole ground that the fifth instruction should not have been given, for the reason that it informs the jurors that there was an implied warranty that the machine was reasonably fit for the purposes for which it was sold. The evidence seems to the writer to be conflicting, but will justify a finding that defendant did not rely entirely on his own judgment in purchasing the chattel, but depended upon plaintiff to furnish him a machine that would be of some practical service. Plaintiff’s agent, although denying that the machine was warranted, testified: “Well, in this case it was only warranted against defective material and workmanship, against breakage,” so that there was not an entire absence of warranty. It does not seem to the writer that the evidence is conclusive that defendant ordered a McCormick corn picker. Plaintiff’s agent, through whom the sale was made, makes no such claim. Defendant testified that he knew that plaintiff handled the McCormick machine, but he stated that he did not know where or from whom they would secure him one, but said: “I told him that we wouldn’t quarrel about the price if he could get one, so long as it workedIt seems to me that this is not a case for the application of the “known, described and defined article” rule. It will be observed that defendant did not have an opportunity of examining the machine before the order was sent. Whether a sale was consummated before the' machine arrived in Overton, the record does not plainly disclose. If, before paying anything on or accepting the machine, *589defendant had an opportunity to examine it, and failed to do so, this element would be eliminated. The evidence is not clear on this point.
■ The rules relative to the existence or nonexistence of implied warranties are succinctly set forth in Jones v. Just, L. R. 2 Q. B. (Eng.) *197, and it seems to me that the instant case should have been submitted to the jury to say whether the facts warranted the application of the fourth .or fifth rule there stated; that is, whether in making said purchase defendant, without an opportunity to inspect the chattel, bought it, relying on the judgment of plaintiff to secure him a machine that was reasonably suited for picking corn. If he did, he had a good defense to this action, and, if he did not, a judgment in his favor cannot be sustained.