Miller, J.,
delivered the opinion of the Court.
The only exception in this record is to the rejection of the appellant’s five prayers and to the Court’s own instruction given to the jury. The parties entered into written contracts on the 12th of August, 1873, by which the plaintiff agreed to sell and the defendant to purchase c< one steam-engine, one boiler, one piece of line shafting and three pulleys on same, three hangers, and one wood-splitting machine, all complete and all to be left in good order for the sum of $600, cash.” The declaration contains a count on this contract, and the common counts for goods bargained and sold, and for work done and materials provided.
The plaintiff offered the contract in evidence, and proved that he furnished the articles therein mentioned all complete and in good order prior to the 19th of September, 1873. It was understood by both parties that the engine mentioned was a second-hand article. Parol testimony was then offered by the defendant, which was taken subject to exception, of certain conversations between the parties prior and subsequent to the written agreement. The Court afterwards by the first branch of its instruction, excluded from the consideration of the jury the conversa[402] tions prior to and resulting in the making of this written contract, and whether there was error in this is the main ground of controversy in the case.
It is a cardinal rule that parol or extrinsic evidence is inadmissible to add to, contradict, or vary the terms of a written contract. It may be admitted to ascertain and make certain the parties and subject-matter of an agreement, to apply the contract to its subject, to prove any collateral independent fact about which the written agreement is silent, and to remove latent ambiguities. In such cases it is used not to contradict or vary the written instrument but to aid, uphold and enforce it as it stands. It is insisted that the excluded evidence in this case was admissible to prove such a state of case as would give, rise to an implied warranty by the vendor, and that this can be done notwithstanding the written agreement. In support of this position special reference is made to the case of Shepherd vs. Fybus, 4 Scott’s N. R., 434, in which Tindal, O. J., remarks, “as to the ground of objection against the admissibility of the evidence, that, the contract being in writing no such warranty could be implied, we think the distinction to be taken is, that, where the warranty is one which the law implies, it is clearly admissible notwithstanding there is a written contract..” Upon the subject of warranties in the sale of goods the authorities both English and American are very numerous. The most recent leading English case is that of Jones vs. Just, 3 Queen’s Bench (Law Rep.,) 191, where it was decided that under a contract to supply goods of a specified description which the buyer has no opportunity of inspecting, the goods must not only in fact answer the specific description but must be saleable or merchantable under that description, and that-the maxim caveat emptor does not apply to a sale of goods where the buyer has no opportunity of inspection. In that case the Court reviews the previous cases and holds that they establish the following propositions :
[403]*4031st. Where the goods are in esse, and may be inspected by the buyer, and there is no fraud on the part of the seller, the maxim caveat emptor applies, even though the defect which exists in them is latent, and not discoverable on examination, at least where the seller is neither the grower nor the manufacturer. The buyer in such case has the opportunity of exercising his judgment upon the matter; and if the result of the inspection be unsatisfactory, or if he distrusts his own judgment he may if he chooses require a warranty. In such a case, it is not an implied term of the contract of sale that the goods are of any particular quality or are merchantable.
2nd. Where there is a sale of a definite existing chattel specifically described, the actual condition of which is capable of being ascertained by either party, 'there is no implied warranty.
3rd. Where a known described and defined article is ordered of a manufacturer, although it is stated to be required by the purchaser for a particular purpose, still if the known, described and defined thing be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer.
4tb. Where a manufacturer or dealer contracts to supply an article which 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 or warranty that it shall be reasonably fit for the purpose to which it is to be applied. In such a case the buyer trusts to the manufacturer or dealer and relies upon his judgment and not upon his own.
5th. Where a manufacturer undertakes to supply goods, manufactured by himself, but which 'the vendee has not had the opportunity of inspecting, it is an implied term in the contract that he shall supply a merchantable article. And under this head is classed the case of Shepherd vs. [404] Pybus, where there was a sale by the builder of an existing barge which was afloat, but not completely rigged and furnished. Here, inasmuch as the buyer had only seen it when built, and not during the course of the building, he was considered as having relied on the judgment and skill of the builder that the barge was reasonably fit for use.
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Miller, J.,
delivered the opinion of the Court.
The only exception in this record is to the rejection of the appellant’s five prayers and to the Court’s own instruction given to the jury. The parties entered into written contracts on the 12th of August, 1873, by which the plaintiff agreed to sell and the defendant to purchase c< one steam-engine, one boiler, one piece of line shafting and three pulleys on same, three hangers, and one wood-splitting machine, all complete and all to be left in good order for the sum of $600, cash.” The declaration contains a count on this contract, and the common counts for goods bargained and sold, and for work done and materials provided.
The plaintiff offered the contract in evidence, and proved that he furnished the articles therein mentioned all complete and in good order prior to the 19th of September, 1873. It was understood by both parties that the engine mentioned was a second-hand article. Parol testimony was then offered by the defendant, which was taken subject to exception, of certain conversations between the parties prior and subsequent to the written agreement. The Court afterwards by the first branch of its instruction, excluded from the consideration of the jury the conversa[402] tions prior to and resulting in the making of this written contract, and whether there was error in this is the main ground of controversy in the case.
It is a cardinal rule that parol or extrinsic evidence is inadmissible to add to, contradict, or vary the terms of a written contract. It may be admitted to ascertain and make certain the parties and subject-matter of an agreement, to apply the contract to its subject, to prove any collateral independent fact about which the written agreement is silent, and to remove latent ambiguities. In such cases it is used not to contradict or vary the written instrument but to aid, uphold and enforce it as it stands. It is insisted that the excluded evidence in this case was admissible to prove such a state of case as would give, rise to an implied warranty by the vendor, and that this can be done notwithstanding the written agreement. In support of this position special reference is made to the case of Shepherd vs. Fybus, 4 Scott’s N. R., 434, in which Tindal, O. J., remarks, “as to the ground of objection against the admissibility of the evidence, that, the contract being in writing no such warranty could be implied, we think the distinction to be taken is, that, where the warranty is one which the law implies, it is clearly admissible notwithstanding there is a written contract..” Upon the subject of warranties in the sale of goods the authorities both English and American are very numerous. The most recent leading English case is that of Jones vs. Just, 3 Queen’s Bench (Law Rep.,) 191, where it was decided that under a contract to supply goods of a specified description which the buyer has no opportunity of inspecting, the goods must not only in fact answer the specific description but must be saleable or merchantable under that description, and that-the maxim caveat emptor does not apply to a sale of goods where the buyer has no opportunity of inspection. In that case the Court reviews the previous cases and holds that they establish the following propositions :
[403]*4031st. Where the goods are in esse, and may be inspected by the buyer, and there is no fraud on the part of the seller, the maxim caveat emptor applies, even though the defect which exists in them is latent, and not discoverable on examination, at least where the seller is neither the grower nor the manufacturer. The buyer in such case has the opportunity of exercising his judgment upon the matter; and if the result of the inspection be unsatisfactory, or if he distrusts his own judgment he may if he chooses require a warranty. In such a case, it is not an implied term of the contract of sale that the goods are of any particular quality or are merchantable.
2nd. Where there is a sale of a definite existing chattel specifically described, the actual condition of which is capable of being ascertained by either party, 'there is no implied warranty.
3rd. Where a known described and defined article is ordered of a manufacturer, although it is stated to be required by the purchaser for a particular purpose, still if the known, described and defined thing be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer.
4tb. Where a manufacturer or dealer contracts to supply an article which 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 or warranty that it shall be reasonably fit for the purpose to which it is to be applied. In such a case the buyer trusts to the manufacturer or dealer and relies upon his judgment and not upon his own.
5th. Where a manufacturer undertakes to supply goods, manufactured by himself, but which 'the vendee has not had the opportunity of inspecting, it is an implied term in the contract that he shall supply a merchantable article. And under this head is classed the case of Shepherd vs. [404] Pybus, where there was a sale by the builder of an existing barge which was afloat, but not completely rigged and furnished. Here, inasmuch as the buyer had only seen it when built, and not during the course of the building, he was considered as having relied on the judgment and skill of the builder that the barge was reasonably fit for use.
In 1 Parsons on Contracts, 468 to 412, the. learned author states that the principle that, if a thing be ordered of the manufacturer for an especial purpose, and it be supplied and sold for that purpose, there is an implied warranty that it is fit for that purpose, has been carried very far, but it must however be limited to cases where a thing is ordered for a special purpose, and not applied to those where a special thing is ordered, although this be intended for a special purpose ; for if the thing is itself specifically selected and ordered there the purchaser takes upon himself the risk of its effecting its purpose; but where he orders a thing for. a special purpose or to do a specific work, there he puts this risk upon the person who is to supply the thing. He also states (as the result of the authorities in this country,) that where the contract of sale is in writing and contains no warranty, there parol evidence is not admissible to add a warranty; this rests upon the familiar principle that the writing is supposed to contain all the contract; and further, (what is undoubted law every where,) that if there be a warranty in writing it ' cannot be enlarged or varied by parol evidence. There is also a very able review of the authorities by Judge Selden in the case of Hoe vs. Sanborn, 21 N. Y., 552, where it was held that upon the sale of a chattel by the manufacturer a warranty is implied, that the article sold is free from any latent defect growing out of the process of manufacture, and that he will be held liable upon such warranty', where it is proved or is to be presumed that he knew of the defect. The decisions in this State (which of course are of binding force here,) bearing upon the subject [405] are Johnston, vs. Cope, 3 H. & J. 89 ; Osgood vs. Lewis, 2 H. & G., 495 ; Hyatt vs. Boyle, 5 G. & J., 110 ; Hunter & Rodewald vs. Atwell, 19 Md., 157, and Wheat vs. Gross, Md.,99.
But in this case it is unnecessary for us to inquire and ascertain whether there is, upon this important question, any conflict between the English decisions and the weight of authority in this country, or whether there is anything in our own adjudications which would prevent us from accepting and adopting the law as stated in Shepherd, vs. Pybus, or the fourth and fifth propositions in Jones vs. Just; nor need we determine whether there is in the present contract any express warranty which would preclude the implication or proof of any other upon the maxim “ expressum facit cessare taciturn ;” because we are clearly of opinion the proffered testimony entirely fails to bring the case within any of the authorities referred to. The proof is, that the plaintiff' carried on business (but what kind of business is not stated) at his shop on Biddle street, and the defendant testified that before this contract was made he informed the plaintiff of the purpose for which the machinery therein mentioned was wanted, viz : for saiuing and splitting wood, (which fact was on cross-examination admitted by plaintiff himself,) but that he did not tell the plaintiff the amount of sawing and splitting he toished or expected the engine he proposed to purchase to do. He also testified that the engine and machinery did in fact saw and split wood, though not as well as he expected it should; that it would saw the wood and then split it, but would not run the saw and splitter at the same time. He also admitted that the engine as bought was a second-hand article; and further testified that he knew nothing of machinery, and that the plaintiff was a practical machinist, and had been for eight years, and that he relied entirely on the skill and judgment of the plaintiff in purchasing said machinery ; that the plaintiff told him [406] the engine then in his shop, together with a boiler and wood-splitting machine not then in his shop, but which he would furnish, would answer the “purpose above stated,” (that is, as we infer, the purpose of sawing and splitting loood, the only purpose the defendant had stated to the plaintiff he wanted it for,) and that he thereupon entered into the contract in question ; that upon trial the machinery “ was found to be totally unfit for said purpose of sawing and splitting wood in the quantity the defendant desired it should, as before mentioned ;” that he notified the plaintiff “ of the same,” (that is, that it was unfit to saw and split wood in the quantity he desired it should,) and the plaintiff himself admitted “the same,” and to meet the wishes of the defendant, he proposed to remove the engine first put up, and erect a new, larger and better one if defendant would advance him $200, part of the original contract price of $600, to which defendant assented, and in pursuance thereof the written agreement of the 19th of September, 18*78, was made. This • contract in nowise suspended or abrogated the previous contract of the 12th of August. On the contrary one of its express terms is, that it is “in nowise to conflict with or to interfere with any 'previous contract that may exist between the aforesaid parties ; it is to be simply an exchange of engines.” The defendant further testified that after the second engine was erected the first boiler was found to be utterly unfit for it, and he was obliged to expend $400 to get a boiler to do his work and suitable for said purpose ; and that “the insufficiency of said machinery to do what defendant expected of it could not be discovered by him on inspection, but only on trial.”
Now, it is quite clear from this evidence that the buyer had ample opportunity to inspect all the articles purchased, if he did not in fact see and examine all of them ; and it cannot be inferred from the mere fact that the seller had been a practical machinist for eight years,- that he was a [407] manufacturer of, or dealer in, the particular machinery sold, or that he was engaged in the business of manufacturing or selling machines for sawing and splitting wood. On the contrary, from the fact that the engine was a second hand article, and was in his shop, and that the boiler and wood-splitting machine were not there and that he had to procure them elsewhere, the plain inference is, that he was using or had used the engine, with its appliances, in some other business, in which as a machinist he was or had been engaged, and that he wished to sell it because he desired to break up his business, or for some other reason. Again, it is conceded the buyer did not disclose to the seller what amount of work he expected the machinery would perform, and it would be very strange if there could he an implied warranty that it should do as much as he expected, without any proof that his expectations were reasonable or unreasonable. ISTo case has gone that far. In Shepherd vs. Pybus there was no evidence of any distinct notice or declaration to the seller, at the time the purchaser inspected the barge or entered into the contract, of the precise service or use for which he purchased it, viz: to carry cement from his manufactory to London, and therefore, the Court say they were not satisfied that the jury had come to a right conclusion when they found “ that the barge was not reasonably fit for use as an ordinary barge, which is the meaning and extent of the warranty laid in the declaration and implied by law,” and consequently they granted a new trial. But still further, the evidence fails'to disclose what an ordinary machine of this kind ought to accomplish, or that such machines, in their usual and ordinary use, saw and split wood at the same time, and hence there is nothing to show the machinery did not subserve the only purpose which the purchaser told the seller lie -wanted it for, (it being conceded that it would and did in fact both saw and split wood,) or that it would not do as much as ordinary machines of that kind usually perform. We are [408] therefore quite satisfied this is not a case in which, 'under any of the authorities, there can he any implied warranty other than that of title.
The Court’s instruction does not exclude the testimony as to what occurred between the parties after the contract was made, nor the written agreement of the 19th of September. That evidence, if admissible at all, was so only in connection, with the defendant’s other proof on that subject, to show non-performance by the plaintiff of. the original contract of the 12th of August, and we must assume it was admitted for that purpose. Performance of that contract consisted in the delivery of the specific articles therein mentioned, complete and in good order. The contract does not bind the plaintiff, as stated in the defendant’s second prayer, “ to furnish the defendant with the machinery therein mentioned, and oil- the usual and necessary appliances to complete the same ana put the same in good nmning order,” nor does it include the articles mentioned in the defendant’s fifth prayer.
By the second part of the Court’s instruction the jury were told that if they found the plaintiff did not perform his part of the contract, then the defendant is entitled to have deducted from the contract price remaining unpaid such damages as they may find the defendant has sustained by such non-performance, and objection is made to it because it allows the damages to be deducted from the contract price. This, however, is precisely what the defendant, by his third prayer, requested the Court to do, and ' he cannot be heard to complain that the Court gave to the jury the very law which he himself asked for. But.we think the Court was right in so instructing the jury in this ' case. The proof shows the articles were delivered and accepted, and retained by the defendant, and the only damages which the evidence discloses he could have sustained by the non-performance of this contract on tire part '. of the plaintiff, was ■ the difference between the contract [409] price and what the articles as delivered were actually worth. Indeed, the law of the case as we have stated it, would not permit him to recoup any other damages. The effect of the instruction, therefore, was to allow the plaintiff to recover, as he well could, under.the common counts in his declaration, what the articles when delivered were reasonably worth. We discover no inconsistency between this ruling and the principles, (which of course we do not mean to disturb) announced in the cases of Coates & Glenn vs. Sangston, 5 Md., 121 and Denmead vs. Coburn, 15 Md., 29. There was consequently no error in this part of the Court’s instruction, nor in the rejection of the defendant’s fourth prayer. The remaining portions of the instruction given by the Court are entirely free from objection.
(Decided 9th February, 1875.)
It follows from what we have said there was no error in the rulings excepted to, and the judgment must be affirmed.
Judgment affirmed.