(dissenting). I cannot agree with the conclusion reached in the majority opinion, nor with all that is said therein in regard to an implied warranty in the case.
The instruction denied and that which was given must be considered in relation to the facts disclosed in this record. The reasoning of the majority opinion treats the rule of implied warranty as one requiring the Construction Company to know what it is evident that neither it nor Bird & Son knew, viz. that the particles of ground slate, when rounded and smoothed by their passage through the conveyor system, could not be made to adhere to the asphalt coated paper upon which it was placed. It is evident that both parties must have been ignorant of this, because it 'is inconceivable that either would have proceeded with the installation of the system, if this result had been known
The Construction Company, in the circular which it issued, part of which is set out in the majority opinion, made the following statement:
‘•in industrial engineering we do not. pose as efficiency experts. Our clients are usually well able to determine the broad principles involved in their business, and it is our province to obtain the best results at the least expenditure, by blending our experience and organization with their expert knowledge of their own business.”
Samples of crushed slate and soapstone were submitted to it by Bird & Son, and it was asked if it could handle these. Subsequently there were conversations between the parties, and Bird & Son, by letter, asked the Construction Company to “recommend a system which you feel we could use to advantage in unloading our cars.” The Construction Company stated that its system could “handle” these materials, and expressed its willingness to guarantee successful operation; but *460these statements were made with reference to an unloading system which called for slight handling of the slate compared with that to which it was subjected by the more elaborate system which was after-wards installed. It proposed to furnish this unloading apparatus for less than $6,000 and fully explained the pneumatic process that would^ be employed. Several days later it received a letter from Bird & Son,' stating that the latter had taken up the matter with the office of C. T. Main, engineers, who were preparing specifications for a “much more elaborate system of both unloading and storing.”
The office of C. T. Main later submitted specifications for this more elaborate system and asked for bids for its construction, not only from the Construction Company, but from others. This more elaborate system, designed and specifiéd by the engineers of Bird & Son, adopted the suction unloading process contained in the Construction Company’s unloading proposal, and added to it a pneumatic system which took the slate from the bottom of the storage bins and blew it at the rate of a mile a minute through an iron pipe which bent and rose 25 feet perpendicularly, then bent again to cross railroad tracks and extended 126 feet into' a bell-shaped steel separator, against whose sides the particles of slate were blown, and in which they were whirled about until they settled by gravity into a service bin beneath, from which they were to be drawn and applied to specially prepared paper. Dust collectors along the route were called ,for in the specifications. The contract for furnishing the materials and labor for the construction of this system according to the specifications of C. T. Main, with certain additions afterwards agreed upon, was awarded to the Construction Company for about $57,000. No representations were made by the Construction Company in regard to> the handling of slate by this elaborate system, which was to cost 10 times as much as the'little unloading system for which it had submitted a proposal.
Bird & Son knew from correspondence between the parties that the Construction Company had never installed a system for conveying ground slate, and that the materials for the transfer of which it had made installations were coal, ashes, corn, wheat, and coke screenings.
The pneumatic system for both unloading the slate and for conveying it from the storage bins to the service bins had, been worked up by the office of Charles T. Main, the engineers employed by Bird & Son, and when these specifications were submitted to the Construction Company for bids, as well as to others, they contained the statement that the contractor was to submit detailed specifications of the apparatus he1 proposes to furnish, “so that full information will be had from which to judge the value of the apparatus covered by the proposal,” and that the specifications submitted by C. T. Main were “to be returned attached to or "incorporated complete as a part of the contractor’s specifications and in case of nonagreement are to take precedence over the latter.”
The whole process of conveying the slate and the means to be used were fully set out in the specifications; there was nothing hidden or mysterious about it. Bird & Son were as weldable to.form an opinion as to the effect upon ground slate of the blowing and whirling process to which it was to be submitted as was the Construction Company.
*461Both parties must have known that so soft a material as ground slate could riot be drawn from the cars by the pneumatic process into a steel separator and then forced by air pressure through iron or steel pipes, around sharp corners, and into another steel separator, at a velocity of a mile a minute, in order to meet the handling capacity required by the specifications, and whirled about in both separators until its acquired velocity was overcome and it fell by gravity, without the ■ creation of a good deal of dust and a substantial wearing away of this soft material. I think both parties knew this, but did not know that the particles of slate thus worn and smoothed were unfit for use in the manufacture of roofing paper.
The instruction denied, and which the majority opinion holds should have been given, would have held the Construction Company to an implied warranty that the ground slate, after having been subjected to this wearing and smoothing process and reduced in size substantially, woüld not be unfit for this use, which I think should have been known to Bird & Son, experts in the manufacture of roofing paper, and upon whose expert knowledge of that business the Construction Company had a right to rely, and with which, it stated in its circular, it would combine its organization and experience', not in paper making, but in conveying.
The instruction assigned as error was. in substance, that there was no implied warranty, unless the jury should find that the Construction Company knew, or ought'to have known, that the purpose of the system was to transfer the ground slate from the cars to the place where it was to be used, in a substantially unchanged condition.
As -applied to the facts' in this case and the obvious change which would necessarily take place in the condition of the slate, and as to 'the extent of which both parties were equally well able to judge, the jury were correctly instructed that, in order to hold the Construction Company upon an implied warranty, they must find that it either knew, or ought to have known, that the slate must arrive at its destination substantially unchanged, in order that it might be successfully used in the manufacture of roofing paper.
Under the admitted facts in this case, knowledge of the general purpose for which slate was to be used would not, in my opinion, be enough to hold the Construction Company to such an implied warranty, unless it knew, or should have known, that the particles of slate could, not be used, if substantially reduced in size.
It was stated by counsel at the oral argument of the case that the reason why the slate could not be used was because the sharp edges of the particles were rounded off and smoothed, and would not cling to or sufficiently imbed themselves in the asphalt surface of the paper. The dust created does not seem to have been the chief reason why the slate could not be used. The engineers of Bird & Son, in a letter to the Construction Company, stated that it was useless for the Con- " struction Company to make any further attempts to get rid of the dust, as the plant was useless to Bird & Son, “by reason of the degradation in and change in form of material.”
The instruction given did not go far enough, and include that, in order to find an implied warranty, the jury should find that Bird & *462Son relied upon the skill and judgment of the Construction Company. Buf this is not assigned as error, and, as the jury has found that the Construction Company could not be charged with knowledge that the system would convey the ground slate to its destination in a substantially unchanged condition, they in fact found that there was no implied warranty, without determining this question.
As applied to the facts in this case, I think there was no error in the instruction denied or given, and that the judgment of the District Court should be affirmed.