#### Charles Metz, Respondent, *v.*The Virgil Practice Clavier Co., Appellant.

(Supreme Court, Appellate Term,

March, 1899.)

Sale of manufactured article — Implied warranty that it will fit the use.

Where deealcomania transfers, manufactured to order and designed to transfer words and figuréis from paper to wood or leather, cannot be successfully used for that purpose by experienced workmen and it does not appear that they can ever be so used successfully, the manufacturer cannot recover their value as upon such an executory sale the manufacturer impliedly warrants that the thing to be manufactured shall be reasonably fit for the purpose to which it is to be applied.

Appeal from a judgment in favor of the plaintiff and against the defendant, rendered in the Municipal Court, second district, borough of Manhattan.

Hobbs *&*Gifford, for appellant.

F. L. Eckerson, for respondent.

Freedman, P. J.

This action was brought to recover the value of 1,672 sets of Deealcomania Transfers, which are words or *727figures, designed to be transferred from paper to wood or leather. The plaintiff is the assignee of the cause oí action.

Thomas P. Burke, the assignor, was the only witness sworn on behalf of the plaintiff, whose testimony materially affects the case. Burke, at the time the cause of action accrued, was the manufacturer of the goods in question and personally made the sale to the defendant. At the time the order was given by defendant to Burke for the transfers nothing appears to have been said as to when the goods were to be delivered, or when they were needed for use by the defendant, but on December 18, 1896, the defendant by its president, Virgil, wrote Burke that the defendant would not have use for the goods before the following July or August, and in July, 1897, Burke made the transfers and sent them to the defendant. Although the testimony is not direct upon the question, the reasonable inference to be drawn from the letters and the other circumstances of the case, is that Burke knew the goods were to be used, if not immediately, at least within a short time after delivery. It appears, however, that the defendant made no use of them until October, 1897, at which time they were found to be imperfect and the defendant was unable to use them, and so informed Burke. Some correspondence passed between the parties relative to the manner in which the transfers should be used, Burke giving instructions, and the defendant claiming to follow them, but without successful results. Burke subsequently, by appointment, came to Rew York in October or Rovember, 1897, and endeavored to use the transfers. There is some dispute in the testimony as to the degree of success attained by Burke in the use of the goods, and Burke testifies that he told the parties present at the experiment, that the goods were not sufficiently “ seasoned ” to “ let them season, and they would be all right,” so that it appears that the delay in the use of the goods tended to benefit them, and that, both at the time of their delivery and the time of their use, the goods had not sufficiently seasoned.

It was clearly shown by the testimony of the defendant’s witnesses that the transfers were imperfect, and that experienced workmen, fully competent and acquainted with such work, were unable to use them, and a large amount of them was returned to Burke within a short time after his visit to defendant. From all the facts and circumstances in this case as shown by the evidence, *728Burke must be held to have warranted the goods to be adapted to the use for which they were intended.

“ Where a manufacturer contracts to sell an article of his own make or manufacture, and there is no express warranty, the law implies a warranty that it shall he reasonably fit for the purpose-to which it shall be applied.” Am. & Eng. Ency. of Law, vol. 10, p. 144, and cases cited.

The proof shows that the goods could not be used at the time, and for the purpose they were intended to he used, nor was it shown with reasonable certainty that they would ever be fit for the purpose for which they were designed. That some of the experiments made at the time of the trial appeared to be satisfactory, while others failed, does not relieve the plaintiff from the implied guaranty.

Judgment must he reversed.

MacLean and Leventritt, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.