COLEMAN, J. —
The plaintiff (appellant) purchased paints and oils from the defendant Drug Company, a dealer in such articles of merchandise, to be used by her in painting her dwelling house, the defendant knowing the use for which said articles were purchased. The articles were delivered to plaintiff, paid for and used. Afterwards the plaintiff discovered, as averred, that the [82]*82paints and oils were worthless and proved an injury to the building instead of a benefit. She sued to recover damages, claiming as special damages, the purchase money paid for the oils and paints, the amount paid to workmen for painting the house, and damage done to the building by reason of the inferior material. The liability of the defendant as set up in the complaint, was raised by demurrer.
There is no averment in either count of the complaint, that the defendant manufactured the articles sold, or perpetrated a fraud in the sale of the articles, or knew that they were unsuitable for the purposes for which they were intended. There is an averment that the defendant was a dealer in paints and oils, and knew the purposes for which they were purchased, and ' ‘ undertook and agreed to supply suitable paints and oils,” which he failed to do. There is also an averment that plaintiff did not know before use the quality of the materials purchased, that it was impracticable to discover the quality, and she relied upon the judgment and skill of the defendant to furnish suitable articles for painting her building. In one count it is averred that defendant “undertook and agreed to supply ‘ pure linseed oil, ’ and that the oil furnished. was not pure linseed oil.” The complaint nowhere avers an express warranty as to the quality of the articles purchased, nor any distinct affirmation or representation of the quality of the paints and oils.
The cause of action is based upon the averment, that the quality was inferior to that the defendant undertook and agreed to supply to plaintiff, and that they were unsuitable for the purposes intended. The liability of the defendants depends upon two questions. The first is, whether a vendor who is a dealer in certain articles of merchandise, by virtue of the fact that he is a dealer, is held to an implied warranty of the quality of the article sold, when he knows the purposes for which it is intended, and the purchaser relies upon his judgment and skill ? and' if not, does the common law doctrine of "caveat emptor" apply to a purchaser who fails to exact an express warranty, but relies upon the agreement of the vendor, to supply articles suitable for certain purposes for which he knows they are purchased, under the facts averred in the complaint ? Upon this last propo[83]*83sition, we think it clear, that where a vendor agrees to furnish articles of- a certain kind and quality, the purchaser may refuse to receive and pay for any which do not correspond with those agreed to be furnished ; but if he actually receives them and uses them, so that they cannot be returned, there being no express warranty, will the law imply a warranty, or allow the purchaser after using them to repudiate the contract ? Action for breach of covenant is not an avoidance of the contract, and the suit is maintainable only upon the ground that it is founded upon the breach of a valid contract. The rule of the civil law is, “caveat venditor,’’ while «that of the common law is “caveat emptor.” Under the civil law, unless the seller stipulated against a warranty, he was bound by an implied warranty of the quality of the article sold. Under the common law to hold a seller bound for the quality of the goods sold, it was necessary to require of him a warranty. It is much easier to apply the doctrine of the civil law as construed by the courts, than that of the common law as interpreted and applied in many courts, both in the United States and England. A very extended discussion, with many citations, may be found in 10 Am. & Eng. Encyc. of Law, under subject of Implied Warranty, and in Vol. 28 of same work, under subject of Warranty generally. In the case of Barnett v. Stanton, 2 Ala. 181, it was declared that a purchaser cannot recover for a defect in the quality of the property sold, except under special circumstances, unless he show the seller warranted the thing sold, or concealed or fraudulently represented its qualities. This principle was reaffirmed in Armstrong v. Bufford, 51 Ala. 410, and in the case of Farrow v. Andrews, 69 Ala. 96, it was declared “that in the sale of goods by one who was not shown to be a manufacturer, there was no implied warranty, that i't was reasonably adapted to the purposes for which it was purchased. In such a sale, like that of any other merchandise, the law exacts from the seller only good faith and fair dealing.” It is fairly inferable from the facts of the case as reported, that the plaintiffs were dealers. There is an entire absence of evidence reported in the case, to show that the purchaser informed the seller of the purposes for which the goods were intended. In Perry v. Johnston, 59 Ala. 648, the law is stated as follows: “It is doubtless true, as a general [84]*84rule, that on a sale of an existing thing, which is present and open.to the inspection and examination of the purchaser, there is no implied warranty of its fitness for any particular use. — Deming v. Foster, 42 N. H. 174. But if the vendor is informed the vendee is purchasing the thing for a particular use, and its fitness for that use is the element of value to the purchaser, a representation by him of its fitness is an implied, if not an express warranty.” In this case the sale was that of a Jersey bull, bought for breeding purposes. It does not appear that the seller was a dealer, and the principle announced held' the vendor responsible upon a warranty because of the representation made of its suitableness, without reference to the question of fraud or deceit.
In the case of Gachet v. Warren, 72 Ala. 288, the appellant sold to the plaintiff two hundred and fifty bushels of “rust proof oats.” The oats were delivered and paid for. The defendant seems to have been a dealer in the sale of oats', and knew the purposes for which they were purchased. The plaintiff’s crop of oats failed because of rust, and he sued to recover damages upon an implied warranty. This case with others is relied upon by appellee to sustain the action of the court in sustaining his demurrer to the plaintiff’s complaint. The jury found from the evidence, that the defendant agreed to sell “rustproof oats,” and that the oats sold and delivered to the plaintiff were “rust proof oats.” This court held, that if the defendant agreed to sell to the plaintiff a species or kind of oats known as “rust proof oats,” and did sell such, there was no breach of the warranty. The effect of the decision was, that a sale of “rustproof oats” could not imply more than a warranty on the part of the dealer, that they were of the species known as “rust proof oats,” and not a warranty of quality. The law is thus stated : ‘ ‘Where a manufacturer, or a dealer, contracts to supply an article he manufactures or produces, or in which he deals, to be applied to a particular purpose, so that the buyer necessarily trusts to the judgment or skill of the manufacturer or dealer, there is, in that case, an implied term of -warranty, that it shall be reasonably fit for the purpose to which it is to be applied. — Pacific Guano Co. v. Mullen, 66 Ala. 582; Benjamin on Sales, § 157. But, if a manufacturer, or dealer, contracts to sell a known and described thing, [85]
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COLEMAN, J. —
The plaintiff (appellant) purchased paints and oils from the defendant Drug Company, a dealer in such articles of merchandise, to be used by her in painting her dwelling house, the defendant knowing the use for which said articles were purchased. The articles were delivered to plaintiff, paid for and used. Afterwards the plaintiff discovered, as averred, that the [82]*82paints and oils were worthless and proved an injury to the building instead of a benefit. She sued to recover damages, claiming as special damages, the purchase money paid for the oils and paints, the amount paid to workmen for painting the house, and damage done to the building by reason of the inferior material. The liability of the defendant as set up in the complaint, was raised by demurrer.
There is no averment in either count of the complaint, that the defendant manufactured the articles sold, or perpetrated a fraud in the sale of the articles, or knew that they were unsuitable for the purposes for which they were intended. There is an averment that the defendant was a dealer in paints and oils, and knew the purposes for which they were purchased, and ' ‘ undertook and agreed to supply suitable paints and oils,” which he failed to do. There is also an averment that plaintiff did not know before use the quality of the materials purchased, that it was impracticable to discover the quality, and she relied upon the judgment and skill of the defendant to furnish suitable articles for painting her building. In one count it is averred that defendant “undertook and agreed to supply ‘ pure linseed oil, ’ and that the oil furnished. was not pure linseed oil.” The complaint nowhere avers an express warranty as to the quality of the articles purchased, nor any distinct affirmation or representation of the quality of the paints and oils.
The cause of action is based upon the averment, that the quality was inferior to that the defendant undertook and agreed to supply to plaintiff, and that they were unsuitable for the purposes intended. The liability of the defendants depends upon two questions. The first is, whether a vendor who is a dealer in certain articles of merchandise, by virtue of the fact that he is a dealer, is held to an implied warranty of the quality of the article sold, when he knows the purposes for which it is intended, and the purchaser relies upon his judgment and skill ? and' if not, does the common law doctrine of "caveat emptor" apply to a purchaser who fails to exact an express warranty, but relies upon the agreement of the vendor, to supply articles suitable for certain purposes for which he knows they are purchased, under the facts averred in the complaint ? Upon this last propo[83]*83sition, we think it clear, that where a vendor agrees to furnish articles of- a certain kind and quality, the purchaser may refuse to receive and pay for any which do not correspond with those agreed to be furnished ; but if he actually receives them and uses them, so that they cannot be returned, there being no express warranty, will the law imply a warranty, or allow the purchaser after using them to repudiate the contract ? Action for breach of covenant is not an avoidance of the contract, and the suit is maintainable only upon the ground that it is founded upon the breach of a valid contract. The rule of the civil law is, “caveat venditor,’’ while «that of the common law is “caveat emptor.” Under the civil law, unless the seller stipulated against a warranty, he was bound by an implied warranty of the quality of the article sold. Under the common law to hold a seller bound for the quality of the goods sold, it was necessary to require of him a warranty. It is much easier to apply the doctrine of the civil law as construed by the courts, than that of the common law as interpreted and applied in many courts, both in the United States and England. A very extended discussion, with many citations, may be found in 10 Am. & Eng. Encyc. of Law, under subject of Implied Warranty, and in Vol. 28 of same work, under subject of Warranty generally. In the case of Barnett v. Stanton, 2 Ala. 181, it was declared that a purchaser cannot recover for a defect in the quality of the property sold, except under special circumstances, unless he show the seller warranted the thing sold, or concealed or fraudulently represented its qualities. This principle was reaffirmed in Armstrong v. Bufford, 51 Ala. 410, and in the case of Farrow v. Andrews, 69 Ala. 96, it was declared “that in the sale of goods by one who was not shown to be a manufacturer, there was no implied warranty, that i't was reasonably adapted to the purposes for which it was purchased. In such a sale, like that of any other merchandise, the law exacts from the seller only good faith and fair dealing.” It is fairly inferable from the facts of the case as reported, that the plaintiffs were dealers. There is an entire absence of evidence reported in the case, to show that the purchaser informed the seller of the purposes for which the goods were intended. In Perry v. Johnston, 59 Ala. 648, the law is stated as follows: “It is doubtless true, as a general [84]*84rule, that on a sale of an existing thing, which is present and open.to the inspection and examination of the purchaser, there is no implied warranty of its fitness for any particular use. — Deming v. Foster, 42 N. H. 174. But if the vendor is informed the vendee is purchasing the thing for a particular use, and its fitness for that use is the element of value to the purchaser, a representation by him of its fitness is an implied, if not an express warranty.” In this case the sale was that of a Jersey bull, bought for breeding purposes. It does not appear that the seller was a dealer, and the principle announced held' the vendor responsible upon a warranty because of the representation made of its suitableness, without reference to the question of fraud or deceit.
In the case of Gachet v. Warren, 72 Ala. 288, the appellant sold to the plaintiff two hundred and fifty bushels of “rust proof oats.” The oats were delivered and paid for. The defendant seems to have been a dealer in the sale of oats', and knew the purposes for which they were purchased. The plaintiff’s crop of oats failed because of rust, and he sued to recover damages upon an implied warranty. This case with others is relied upon by appellee to sustain the action of the court in sustaining his demurrer to the plaintiff’s complaint. The jury found from the evidence, that the defendant agreed to sell “rustproof oats,” and that the oats sold and delivered to the plaintiff were “rust proof oats.” This court held, that if the defendant agreed to sell to the plaintiff a species or kind of oats known as “rust proof oats,” and did sell such, there was no breach of the warranty. The effect of the decision was, that a sale of “rustproof oats” could not imply more than a warranty on the part of the dealer, that they were of the species known as “rust proof oats,” and not a warranty of quality. The law is thus stated : ‘ ‘Where a manufacturer, or a dealer, contracts to supply an article he manufactures or produces, or in which he deals, to be applied to a particular purpose, so that the buyer necessarily trusts to the judgment or skill of the manufacturer or dealer, there is, in that case, an implied term of -warranty, that it shall be reasonably fit for the purpose to which it is to be applied. — Pacific Guano Co. v. Mullen, 66 Ala. 582; Benjamin on Sales, § 157. But, if a manufacturer, or dealer, contracts to sell a known and described thing, [85]*85although he may know the purchaser intends it for a specific use, if he delivers the thing sold, there is no implied warranty, that it will answer, or is suitable for the specific use to which the purchaser intends applying it. Chanter v. Hopkins, 4 M. & W. 399 ; Hoe v. Sanbone, 21 N. Y. 552 ; Bartlett v. Hoppock, 34 N. Y. 118 ; Dounce v. Dow, 64 N. Y. 411; Port Carbon Iron Co. v. Groves, 68 Penn. 149 ; Gosler v. Eagle Sugar Refinery, 103 Mass. 331; 1 Pars. Contr. 586.” The word “dealer” is contained in the quotation from Benjamin, section 157, but the word “dealer” is not in the Alabama case, 66 Ala., supra, cited, but only “manufacturer.”
In the case of Englehardt v. Clanton, 83 Ala. 336, after stating the rule applicable to manufacturers, it is said “The same rule extends to dealers in articles sold for a special use or purpose.” Citing 2 Benjamin on Sales, §§ 988, 995 ; Perry v. Johnston, 59 Ala. supra. Says the opinion : ‘ ‘The circumstances to an implied warranty in such cases are, that the seller shall be a manufacturer or dealer, shall have information of the particular use for which the article is intended, and the purchaser trust to the skill of the manufacturer or dealer from necessity, or other sufficient cause, and not on his own judgment.”
In the 28th Volume of Am. & Eng. Encyc. of Law, p. 757, the law is stated as follows : “If the vendee buys an article for a particular use, which is known to the vendor at the time, and he assures the vendee that the ‘article is all right,’ or uses equivalent language, his assurance or representation amounts to a warranty that the article is reasonably fit for the use for which the vendee desires it; the vendee would naturally so understand it, and the vendor must be presumed to have intended it so. But when the vendor delivers goods of the character and quality represented, the vendee can not defend upon the ground that they are unsuitable for the purposes for which he desired them.”
The principle that a manufacturer is held to an implied warranty of quality is based upon the fact that he must-know the “make-up” of the article sold by him. The law does not presume that a mere dealer is possessed of the same information as a manufacturer, and the same reason for the rule does not exist as to a mere dealer.
There may be apparent exceptions in some cases, as [86]*86druggists, &c. Every vendor, whether he be a dealer or not, is responsible for his representation or affirmation as to quality, which are more than expressions of opinion and which are relied upon, and upon which the party purchasing has the right to rely. Says Mr. Benjamin (Benj. on Sales, p. 485) : “If a man buy an article for a particular purpose made known to the seller at the time of -the contract, and rely upon the skill or judgment of the seller to supply what is wanted, there is an implied warranty that the thing sold will be fit for the desired purpose ; alit&r, if the buyer purchases on his own judgment.” This principle does not depend upon the fact that the vendor is a dealer, .but the warrañty may arise from the character of the article and circumstances of the contracting parties, whether the seller be a dealer or not. The purchaser may have had no opportunity to examine the article, or if subject to examination and in fact examined, he may not possess the requisite information to enable him to determine. In such a case, if the vendor affirms or represents the quality of the goods, as a fact, he is bound by such representation or affirmation; or if under such circumstances knowing the use intended, he undertakes and agrees to furnish an article, not merely in kind, but such as may be suitable for the purposes intended, he will be bound by such undertaking, whether he be a dealer or merely a seller. But if the purchaser- exercises and relies upon his own judgment in the selection of the articles and purchases accordingly, there is no warranty. The complaint in the case at bar' avers that the seller was a dealer in paints and oils. The complaint does not merely aver an undertaking on the part of the defendant to supply her with paint and oils, but avers that it undertook and agreed to supply paints and oils of certain qualities, to-wit, such as were suitable to be used in painting her house, and this is followed by an averment of a breach of the agreement, stating wherein they were defective-. A warranty of quality by a vendor, whether expressed or implied, is collateral to the main contract. A cause of action based upon the breach of the warranty, is not the same as the cause of action founded upon the breach of the contract of sale itself. If the vendor does not deliver the article he undertook and agreed to furnish, he is guilty of a breach of his [87]*87contract, and the purchaser need not receive it; or if delivered and used, when sued, the purchaser may set up breach of contract unless he has waived his right of action for the breachor if the article delivered, used and paid for, was of such a character, that the purchaser did not detect that it did not correspond with the. article purchased, and the vendor undertook and agreed to deliver, he may then sue for breach of contract. As we have seen, in the case, of the “rustproof oats,” where the purchase is of a kind or species, a delivery of the species is a correspondence or compliance with the contract; and in the case of the Jersey bull, the species was delivered, but there was no correspondence in the quality affirmed, the defect being of such a character that it could not be detected except by the use. The complaint in the present action is so framed, that to entitle the plaintiff to recover, she must prove the contract as laid, and the breach thereof. She can not recover on an implied. warranty. The averment that the defendant- was a “dealer” adds nothing to its sufficiency, nor will this averment and proof of it authorize a recovery on less evidence, than if the vendor had been other than a “dealer.” The complaint is for a breach of the contract of sale, and hot for a breach of warranty collateral to the contract.
The second and third counts contain a statement of facts from which it may be that an implied warranty might arise, but each of the counts specifically avers a contract of sale and purchase, and the breach of the contract as distinguished from an implied warranty is counted on as the cause of action. We construe the counts according to their legal effect, without reference to the purpose of the pleader.
The ground of demurrer that the damages sought to be recovered are too remote, apply to all the damages sued for. Some of them clearly are not remote. We are of opinion the court erred in sustaining the demurrer to the complaint.
Reversed and remanded.