(dissenting). — I am unable to agree to the propositions of law announced by the majority. I think there was both an express and an implied warranty of the quality of the piano players, and I am convinced, also, that the defendant voluntarily failed to comply with the terms of its contract, in that it neglected to furnish plaintiff with any players after October 15, 1910. This latter fact is not disputed in the testimony, and the .trial court did not err in its sixth instruction in stating the undisputed facts. The contract expressly provided and warranted that the -players “would be of first class material and workmanship, free from flaws or defects and in good working order at the time of delivery”, The contract expressly stated that this was a warranty, and I am led to inquire what is meant by the’ phrase, “in good working order at the time of delivery”. Obviously, to my mind, this means that the machine should be so perfected that, when installed for the purpose for which it was made, it would do the work intended; such seems to be the holding of the cases. Myers v. Steel Machine Co., (N. J.) 57 Atl. 1080; Bucy v. Pitts Agricultural Works, 89 Iowa 464; Davis v. Sweeney, 75 Iowa 45; Checkrower Co. v. Bradley, 105 Iowa 537; First National Bank v. Dutcher, 128 Iowa 413; Ideal Heating Co. v. Kramer, 127 Iowa 137.
In the Dutcher case, supra, the undertaking of the seller was that “the machine is warranted to be of good material and workmanship and, when properly adjusted and 'operated, to do good work. ’ ’ In speaking of this, the court said: ‘ ‘ This is probably neither more nor less than the warranty, which in the absence of the writing the law would imply, that the machine was reasonably well made, of good material, and adapted to the uses and purposes for which it was con-, strueted. ’ ’
In the Heating Company case, supra, the court said: “Without at this time considering whether defendant may rely upon any implied stipulation or agreement, we have to say that, in our judgment, the plaintiff, in agreeing to do the *156work ‘in a good and workmanlike manner’, did undertake to produce definite and certain results. The stipulation means something more than a promise to do a job which shall look well — something more than a good example of pipe fitting. A grist-mill which will not grind, a reaper that will not cut grain, a locomotive that will not move when the proper power is applied, can hardly ,be said to have been constructed in a good and workmanlike manner. Even so a heating apparatus that will heat nothing but the owner’s temper must be said not to fill that condition. If a professional ditcher undertakes to drain a swamp in a good and workmanlike manner, but by a miscalculation makes the outlet of his ditch higher than the surface of the swamp, it will not avail him to say that the trench was evenly dug, and the tile laid with -perfect regularity. A good and workmanlike job is one that is done as a skilled workman should do it. Fitzgerald v. La Porte, 64 Ark. 34 (40 S. W. 261); Smith v. Clark, 58 Mo. 145.”
In the Checkrower case, supra, the' plaintiff warranted the machines “to be well made and finished”, and the defense was that they were not as warranted and were wholly unfit for the purpose of cutting corn. Speaking upon the question of warranty, both express and implied, the court said: ‘ ‘ Plaintiff contends that there was no breach of the warranty, for that the warranty was that the machines were ‘well made and finished’. The contract was made after inspection of a sample machine, and plaintiff insists that, if the machines furnished were made and finished as this sample was made and finished, there was no breach of the warranty, and insists that the evidence so shows. The warranty expressed is not that the cutters were made and finished as per sample, but that they were well made and finished. If it should be said that this is not a warranty that the cutters were fit for the purpose for which they were intended, we think that such a warranty must be' implied. In Blackmore v. Fairbanks, Morse & Co., 79 Iowa 289, this court said as follows: ‘The rule in regard to an implied warranty of quality has been stated as *157follows: “So far .as an ascertained specific chattel, already existing, and which the buyer has inspected, is concerned, the rule of caveat cmptor admits of no exception by implied warranty of quality. But where a chattel is to be made or supplied to the order of the purchaser, there is an implied warranty that it is reasonably fit for the purpose for which it is ordinarily used, or that it is fit for the special purpose intended by the buyer, if that purpose be communicated to the vendor when the order is given.” 2 Benjamin, Sales, Sec. 966. See, also, King v. Gottschalk, 21 Iowa 513. In this case, plaintiff had not inspected the property ordered, and had no opportunity to do so, when the order was given. On the other hand, defendant knew the use for which the property was intended. Therefore, unless excluded by the, terms of the order, there was an implied warranty that the property was fit for the designed use, and that it was in merchantable condition. Appellant contends that the order, in effect, contains an express warranty that the property shall be in good order; hence, that implied warranties must be excluded. It is true that, as a general rule, no warranty will be implied where the parties have expressed in words the warranty by which they mean to be bound (2 Benjamin, Sales, Sec. 1002); but the rule does not extend to the exclusion of warranties iráplied by law, where they are not excluded by the terms of the contract. Thus, an express warranty of title does' not exclude an implied warranty of quality,’ — citing cases. It is further said: ‘A warranty will not be implied in conflict with the expressed terms of the agreement; but there is no conflict of that kind in this case. ’ The same is trae of the case at bar, and we think that it should be implied if it is not expressed, that the cutters were reasonably fit for the purpose for which they were intended. ’ ’
To my mind, this case fully settles, every proposition involved in the one now under consideration. In that case, the machine was a corncutter known as the “Better Way Corncutter” — Harry Willits patent — and there was a sample *158machine. If there was no express warranty, then the question arises as to whether one will be implied or not. If there was no express one, then no difficulty arises regarding any conflict between an express and an implied one created by law. The rule in this state, as I understand it, is as stated in Loxtercamp v. Implement Co., 147 Iowa 29, as follows:
“Wé do not understand counsel to deny the proposition that, generally speaking, in an executory contract for sale of personal property when the thing sold is not present for inspection and delivery, or where a dealer undertakes to furnish an article to fill the order of one who buys for resale or for any other known or specified use, a warranty is implied that it is of merchantable quality, and this is ordinarily held to mean or include an assurance that such article (if a product of manufacture) is well made, of good material, and reasonably well fitted for the uses for which it is constructed or furnished. Davis v. Sweeney, 75 Iowa 45; Russell v. Critchfield, 75 Iowa 69; Checkrower Co. v. Bradley, 105 Iowa 537; Blackmore v. Fairbanks, 79 Iowa 282; Parsons v. Mallinger, 122 Iowa 703; Bank v. Dutcher, 128 Iowa 413. In some states the rule may be somewhat narrower than is here stated, but it is too well settled in our own jurisdiction to admit question. . . . Though such is not the universal holding, it. is the rule in this state that a written contract of sale and written warranty do not necessarily deprive the buyer of the benefit of an implied warranty. Bucy v. Pitts, 89 Iowa 464; Checkrower Co. v. Bradley, 105 Iowa 537; Heating Co. v. Kramer, 127 Iowa 142. Our attention is directed to nothing in the writing which is inconsistent with the existence of an implied warranty.” '
See, also, Heating Co. v. Kramer, supra; Pew Co. v. Karley & Titsenor, 154 Iowa 559; Conkling v. Standard Oil Co., 138 Iowa 596; Parsons v. Mallinger, 122 Iowa 703; Checkrower Co. v. Bradley, supra; Bucy v. Pitts, supra; McClung *159v. Kelley, 21 Iowa 508; Blackmore v. Fairbanks, 79 Iowa 282; and Davis v. Sweeney, 75 Iowa 45. Many of these cases involve specific articles, some of them patented and all open to the inspection of the buyer, and in one case there was a sample machine. In the Davis case, the article was a threshing machine; in the Blackmore case, it was an engine and boiler, the engine being described as a standard Westinghouse engine; in the Buey case, it was a threshing machine; in the Parsons case it was a band-cutter and self-feeder; in the Checkrower case, supra, it was a corncutter made under the Harry Willits patent; in Pew ’s case, it was an electric engine; in the Heating case, it was a plumbing outfit; in the Loxtercamp case, it was a manure spreader; in the National Bank case, it was a corn husking and shredding machine.
In my opinion, the Checkrower case, supra, is determinative of every question discussed by the majority in their opinion, and it reaches a conclusion entirely contrary to that announced in this opinion. J am confining my discussion to the point made by the majority for a reversal and am convinced, after a study of our eases, that no matter what the rule in other states, we are committed to the doctrine that there was both an express and implied warranty which was broken by the defendant, and that defendant, by reason of that fact, failed to comply with its contract and is liable for the damages fixed therein. 1 would therefore affirm.