delivered the opinion of the Court:
It is unnecessary for us to go into any elaborate examination of the rulings of the trial court in this case. There was no testimony in the case on behalf of the defendant. The only testimony was that given on behalf of the plaintiff by himself and his witnesses. Upon that testimony we are very clearly of opinion that there should have been no recovery for the plaintiff in respect of two of the three items of his claim as set forth in his bill of particulars.
The plaintiff is necessarily chargeable with the act of his foreman in putting the bad eggs sold by the defendant into the cake that was made, although he himself was absent at the time and personally innoeent of the transaction. The foreman knew the *216eggs to be bad, for the cake into which they were put was bad in consequence of the eggs. That the cake was spoiled was the immediate result of the improvident act of the foreman; and the consequent loss is, therefore, chargeable to the appellee himself. Such consequent loss includes both the cost of the spoiled cake and the loss of the custom of those who thereafter refused to deal with the appellee. While the appellant more remotely contributed to the result, yet the immediate cause was the improvident action of the appellee’s foreman and agent.
With reference to the first item of the appellee’s claim we are equally clear in our opinion that the plaintiff is entitled to recover to some extent. The loss to which the plaintiff was put by being'compelled to resort to the market for the purchase of such eggs as he could procure suitable for his purpose was the direct and immediate result of the defendant’s failure to perform its contract. It is unnecessary to inquire whether the order signed by the plaintiff and accepted by the defendant in itself constitutes a contract. It is plain that there was a contract between the parties, perhaps partly oral and partly in writing, whereby the appellant was to deliver a certain class of eggs to the appellee on demand, and the appellee was to receive and pay for them at a certain, stipulated price. This was a sufficient contract for the occasion, and both parties acted upon it as such. Certainly when the appellant delivered the eggs under the order, it was no longer open to either party to say that there was no-contract. So far as there might be delivery, there would undoubtedly be a contract pro tanto.
Now, that for goods furnished under such conditions there is an implied warranty that the goods are in proper condition and suitable for the purpose for which they are intended, is a proposition in our opinion too plain for argument. It is unnecessary to go in extenso into the doctrine of warranty, either express or implied. It is sufficient to say that, when one contracts to deliver a good article, suitable for the purpose for which it is intended, he cannot relieve himself from liability by furnishing a bad thing of the same kind wholly unsuitable for the proposed purpose. The rule of caveat emptor does not apply in this. *217case. It is not the case of articles exposed for sale which are fully open to the inspection of the purchaser, and which the purchaser is held to buy at his own risk. Here is an article contracted to be delivered at some future time, which the purchaser has no means of examining before it is delivered, which the vendor alone prepares and the character of which is known to him alone. It would he futile to argue that the sale of such an article is not accompanied by an implied warranty that it is the thing which was contracted for.
The thing which was delivered in the present case was not that for which the plaintiff had contracted. It was utterly unsuited for the purpose for which it was intended. The plaintiff, therefore, was entitled to go out upon the open market and purchase the proper article at the most reasonable price for which he could procure it, and charge the defendant with the difference of price. Nor was he required by reason or by any rule of law to go beyond the local market for the purpose. There is no authority that holds the contrary.
We greatly regret to be compelled to reverse a judgment in a case of this kind. If the verdict of the jury had been such as that we might infer from it how much of their allowance was based upon the two items of claim for which we hold that there can he no recovery, we might possibly reform or modify the judgment. But we bave nothing on which to base such a modification. Both the verdict and the judgment stand as a whole.
Tor the reasons assigned the judgment must he reversed, with costs, and the cause remanded to the supreme court of the District, with directions to award a new trial; and it is so ordered.
Reversed.
Thereafter the appellee, by Mr. Merrilat and Mr. Balderston, filed a motion to modify and reform the judgment of the court.
The motion was, on the 1st day of March, 1904, granted, Mr. Justice Morris delivering the opinion of the Court:
A motion has been filed in this case on behalf of the appellee *218to modify and reform the judgment of the court, which was for a new trial of the issue between the parties.
The suit was upon three items of account, which were these: (1) The difference between the cost price of certain eggs agreed to be delivered by the appellee to the appellant, and which were delivered in a condition unfit for use, and the market value which, upon the appellee’s default, the appellant was compelled to pay for the necessary supply of eggs in the open market, amounting to $129.03, as claimed in the original bill of particulars; (2) the price of some cakes that had been spoiled by the improvident use of some of the appellee’s eggs, amounting, as claimed, to $19.10; and (3) damages from loss of custom resulting from the sale of cake made with the unfit eggs, amounting to $150. We held that, under the testimony in the case, there could be no recovery for the second and third of these items, but that there might be a recovery for the first item. We held, also, however, that, as the jury had found a verdict for the undivided sum of $237, and there was nothing in the record to show 'which items had beer allowed or how much had been allowed upon any one item, we were unable to modify or reform the judgment, and were compelled to direct a new trial.
Now, however, in the motion for a reformation of the judgment, our attention has been called to the fact, which appears in the record but not in the printed transcript, that, before the trial in the court below the demand of the appellee upon the first item had been reduced from $129.03 to $118; and that it has been admitted by counsel for the appellant in his brief that the verdict of the jury for $237 was made up of $118 on account of the first item, $19 on account of the second item, and $100 on account of the third item. It seems to be possible, therefore, to segregate and eliminate the last two items from the verdict; and regarding the case as one in which the parties should not be subjected to the delay and expense of a new trial, we think that the motion for the reformation of the judgment should be allowed.
The cause will be remanded, therefore, to the supreme court *219oí the District of Columbia, with directions to vacate the judgment heretofore entered in that court for $237 in favor of the appellee, and thereupon to enter a judgment on behalf of the appellee for the sum of $118, with costs, reforming and modifying, if need bo, the verdict of the jury for that purpose. The costs of the appeal are to be paid by the appellee; and it is so ordered.
Judgment reversed and ordered to he modified.