of no financial worth, so long as it appears that the transfer is not merely colorable. Negley v. Morgan, supra; Goss v. Woodland Fire Brick Co., supra. It may be that Pritts is without means to pay, but it is to him the lessor must look, upon the breach of the covenant for rent. The liability of the present appellee was terminated, and, as to it, no recovery can be had.

nant not to sublet without approval in writ- | Acheson v. Kittanning C. N. Gas Co., 8 Pa. ing was a personal one, by which of course Super. Ct. 477. It is immaterial that he is Cochrane, the first lessee, was controlled. It did not, however, bind the subsequent assignees, since the lessor failed to provide in the first written consent that no additional transfer should be made without his leave. 16 R. C. L. 867; Sanders v. Partridge, 108 Mass. 556; Reid v. Wiessner Brewing Co., 88 Md. 234, 40 Atl. 877; Trickett on Landlord and Tenant, 394. Pritts, therefore, by the act of the coal company, became possessed of such right to mine as the latter had acquired.

[3, 4] It is insisted, however, that the whole question here is res adjudicata, and the liability of the coal company is no longer a matter of inquiry. In the suit of the previous year, as already noted, a recovery was had for the annual royalty due July 17, 1919, the defense being an alleged lack of mineable coal, resulting in a surrender of the lease; judgment was recovered for the plaintiff. Here, an entirely different situation is shown, to wit, an assignment of the

[2] What was the effect of this transfer upon the liabilities of the respective parties to the lessor? It was made before July 17, 1920, when the annual royalty became due, and the possession of the land was surrendered by the assignor, and taken by Pritts. There is nothing to indicate that the transaction was merely a disguise by which the coal company retained the beneficial enjoy-lease before the rental has become due, and ment, while placing the burden of payment upon its transferee. Covenants to pay rent or royalty run with the land, and the assignee is bound by their terms. Fennell v. Guffy, 139 Pa. 341, 20 Atl. 1048; Fennell v. Guffy, 155 Pa. 38, 25 Atl. 785. This liability continues, however, only so long as does the privity of estate, and when the control of the land has been surrendered to another it ceases, in the absence of some contract to the contrary. Negley v. Morgan, 46 Pa. 281; Borland's App., 66 Pa. 470. And this is so, though the lease binds the original contracting party and his assigns, as in the present case. Washington N. Gas Co. v. Johnson, 123 Pa. 576, 16 Atl. 799, 10 Am. St. Rep. 553. Having taken possession, the new assignee becomes liable, and the responsibility by the previous holder ends. Hannen v. Ewalt, 18 Pa. 9; MacDonald v. O'Neil, 21 Pa. Super. Ct. 364; Goss v. Woodland Fire Brick Co., 4 Pa. Super. Ct. 167;

the taking possession of the land by the assignee. It is undoubtedly true that judgments are conclusive as to all relevant matters which were, or could have been, considered in the prior proceeding. First National Bank v. Dissinger, 266 Pa. 349, 109 Atl. 626; McGunnegle v. Railroad, 269 Pa. 404, 112 Atl. 553. In order, however, to render a judgment effectual as a bar, it must appear that the cause of action is the same in substance, and can be sustained by the same evidence. Schwan v. Kelly, 173 Pa. 65, 33 Atl. 1107; Nernst Lamp Co. v. Hill, 243 Pa. 448, 90 Atl. 137. Clearly, in the present case, a different contention is presented. At the time of the former trial the appellee had not made the assignment and given up possession-facts upon which the present defense rests. The objection made cannot therefore be sustained.

The judgment of the court below is affirmed, at the cost of the appellant.

(139 Md. 586)
LURIA BROS. & CO., Inc., v. KLAFF.
(No. 50.)

(115 A.)

(Court of Appeals of Maryland. Dec. 2, 1921.)

On the trial of a buyer's counterclaim for the amount paid for shells claimed to have been purchased for remelting purposes and to 1. Sales273(1)—Statute puts sellers oth- have been unsuitable for that purpose, a queser than manufacturer or grower in same position asked the superintendent of one to whom the buyer reconsigned the shells as to whether tion as respects implied warranties. an examination disclosed any defect rendering the shells unsuitable for his purposes properly excluded as too broad, as they might have been unsuitable for his purposes for reasons giving the buyer no right to complain. 7. Sales 62-Contract held divisible, and buyer entitled to return some of goods, though not returning others similar.

Uniform Sales Act § 36(1), relative to implied warranties, puts a seller, who is not a grower or manufacturer of the thing sold, in the position formerly held by a manufacturer or grower in reference to the implied warranty that the goods shall be reasonably fit for the purpose to which they are to be applied.

2. Evidence 450(8), 460(11)-Contract for sale of shells held sufficiently ambiguous to admit evidence that they were understood to be unloaded shells.

A contract for the sale of "steel shells, 3 inch, 6 inch, and 9 inch" is sufficiently ambiguous to admit evidence that the shells were bought as scrap steel for remelting purposes, and understood to be unloaded nonexplosive shells and extrinsic evidence as to the subjectmatter of the contract may be received to make it clear, if necessary, and apply the contract to its subject-matter, though such evidence may not be used to contradict or vary the written instrument, but only to aid, uphold, and enforce

it.

4. Sales 440 (2)—Exclusion of evidence of purpose for which shells purchased held erroneous and prejudicial.

was

A contract for the sale of five carloads of shells was a divisible contract, where the price was not a lump sum, but $25 a ton, and did not depend upon the quantity ordered, and the buyer's right to return some of the shells because unsuitable for the purpose for which purchased was not affected by his failure to return others which were similar, in the absence of any injury to the seller from the failure to return all the shells, though the failure to return them all might bear on the buyer's good faith.

Appeal from Baltimore City Court; Morris
A. Soper, Judge.

Action by Harry Klaff, trading as H. Klaff
& Co., against Luria Bros. & Co., Inc. From
a judgment for plaintiff, defendant appeals.
Reversed, and new trial awarded.

Argued before BOYD, C. J., and BRISCOE,
THOMAS, PATTISON, URNER, STOCK-
BRIDGE, ADKINS, and OFFUTT, JJ.

Venable, Baetjer & Howard and William
L. All, all of Baltimore, for appellant.
Myer Rosenbush, of Baltimore, for ap
pellee.

ADKINS, J. This suit was brought by appellee to recover from appellant a balance In an action in which a buyer counterclaim- of $3,790.30 for several carloads of metal, ed for the price paid for shells on the theory sold and shipped between March 15 and June that they were purchased as scrap steel for 5, 1920. The amount of this balance was adremelting purposes, and were unfit for that pur-mitted by appellant, the dispute being only pose, the exclusion of testimony that the shells were purchased as and understood to be scrap metal, and that the seller knew the purpose for which they were purchased, was erroneous and prejudicial.

5. Sales 440(1)—Exclusion of evidence as to what happened when shells used, and why they were not used sooner, erroneous and prejudicial.

Where a buyer counterclaimed for the amount paid for shells on the theory that they were purchased for remelting and were unfit for that purpose, the exclusion of evidence as to what happened when his vendees attempted to use the shells, and why they did not use them immediately, it appearing that they had not been used for three or four weeks, held erroneous and prejudicial.

claim of set-off arising out of a previous salę
as to the validity and amount of appellant's
of five carloads of steel shells by appellee to
appellant, shipped from the Naval Proving
Ground at Aberdeen, Md., to appellant at its
yard in Reading, Pa., and reconsigned by ap
pellant to the Carpenter Steel Company, also
located at Reading. Three of the five car-
loads were rejected by the Carpenter Steel
Company, and appellant tendered a return
to appellee. On the refusal of appellee to
accept the return of the three rejected car-
loads and furnish appellant with shipping
instructions, they were reshipped by appel-
lant to appellee at the Naval Proving Ground.
The claim of set-off was for the purchase
price paid by appellant for the rejected cars,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

T

together with railroad demurrage charge ples Mr. Silberman had seen in your office? which accrued pending shipping instructions A. I cannot remember. from appellee.

(115 A.)

"Q. What happened when you attempted to use the shells in your furnaces?

"Q. Why did you not attempt to use them immediately? (The witness having testified that the shells had been in the company's yards about three or four weeks before he attempted to remelt them.)"

These rulings of the court were the grounds for the fifth and sixth exceptions. Appellant then made a formal offer to prove by the said witness:

"That the material mentioned in the above contract was dangerous and unmerchantable as material bought and sold by dealers in scrap iron and steel."

Refusal of the court to permit said testimony was the ground for the seventh excep

tion.

It will be seen that the purpose of appellant was to establish the following facts: (1) That the shells were understood between the parties to be unloaded, nonexplosive shells, and were bought as scrap steel. (2) That they were to be used for remelting purposes, and that appellee knew this fact, and that appellant relied on appellee's skill and judgment.

(3) That the shells were, in fact, explosive and unfit for remelting, and were dangerous and unmerchantable as material bought and sold by dealers in scrap iron and steel.

(4) That the defects were latent, and only discoverable by heating test.

"We have held with equal clearness that when the seller is not the manufacturer of the article sold and the buyer has an opportunity of examining it, there is no implied warranty, in the absence of fraud, that it shall be fit for the purpose for which it was bought. In such cases, if there be no express warranty, the doctrine of caveat emptor applies, and the buyer not having seen fit to exact a warranty, takes upon himself the risk as to quality"citing Horner v. Parkhurst, 71 Md. 116, 17 Atl. 1027; Farren v. Dameron, 99 Md. 337, 58 Atl. 41 Md. 389, and Rasin v. Conley, 58 Md. 65. 367, 105 Am. St. Rep. 297; Rice v. Forsyth,

But the cases cited above all arose prior to the adoption in this state in 1910 of the Uniform Sales Act (article 83 of the Code). Section 36 (1) provides:

"Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose."

It will be seen that the important change made by this section was to put the seller, who is not the grower or manufacturer of the thing sold, in the position which was formerly held in this state by the manufacturer or grower only, in reference to the implied warranty mentioned.

The case of St. S. Angelo Toso (C. C. A.

(5) When the explosive nature of the shells 3d Circuit) 271 Fed. 245, construes the Pennwas discovered.

[1] It seems reasonably clear that the view taken by the court in regard to implied warranty was in accordance with the settled law of this state and of nearly all the states of this country as it stood prior to the Uniform Sales Act of 1910, codified as article 83. In Commercial Realty Co. v. Dorsey, 114 Md. 172, 78 Atl. 1099, decided after the passage of the Uniform Sales Act, but in reference to a contract made prior thereto, the law of implied warranties was stated to be as follows:

sylvania Sales Act, § 15 (Pa. St. 1920, § 9663) (6) Why the Carpenter Company allowed which is the same as section 36 (1) of Code the shells to remain for three or four weeks Md. art. 83. That case arose out of the oral in its yard before a furnace test was made. contract confirmed by correspondence whereThe trial court, in excluding testimony in the navigation company purchased from tending to prove these facts, acted apparent- the coal company "1,000 tons bituminous coal ly on the theory that the written contract for delivery to our steamers price must speak for itself, and that there was to be $5.81 per ton trimmed in bunkers." no implied warranty. When alongside the steamer and after its failure to respond satisfactorily to burning tests, the navigation company rejected the coal and refused payment. It remained on lighters until sold to another concern. Libel was instituted to recover the contract price. Respondent pleaded warranty as to the quality of the coal, and defended on its breach. The court held that the above section of the Sales Act was in effect a qualification of the doctrine of caveat emptor. It affirmed the lower court in dismissing the libel on the ground that, although the coal "Where a manufacturer contracts to supply was found to be merchantable, it was not an article which he manufactures to be applied reasonably fit for the purpose for which it to a particular purpose so that the buyer necwas required, and that the buyer relied on essarily trusts to the judgment or skill of the the seller's skill and judgment in selecting manufacturer, there is in that case an implied the coal. The buyer had no opportunity to term or warranty that it shall be reasonably see the coal before it was purchased, or to fit for the purpose to which it is to be applied. inspect it before it was delivered. The court In such a case the buyer trusts to the manu-quotes from Kellogg Bridge Co. v. Hamilton, facturer or dealer and relies upon his judg- 110 U. S. 108, 3 Sup. Ct. 537, 28 L. Ed. 86, as ment and not upon his own"-citing Queen City Glass Co. v. Clay Pot Co., 97 Md. 429, 55 Atl. 447, and Rice v. Forsyth, 41 Md. 403, and

follows:

"According to the principles of decided cas

fundamental inquiry must always be whether,, theretofore, presuming that the buyer relied under the circumstances of the particular case, the buyer had the right to rely, and necessarily relied, on the judgment of the seller and not upon his own."

upon his own judgment where there was an opportunity of inspection, for the future, whether he relied upon his own judgment or not should be a question of fact. In cases within subsection (2) if he has examined the goods, he is to be held to have relied upon his own judgment so far, but so far only, as regards defects observable upon examination. But in casthe vendor is aware that his judgment and skill are relied on by the buyer, opportunity of examination or the fact of examination is

In the Hamilton Case, which was before the distinction between manufacturer and dealer had been abolished, the court was dealing with a manufacturing seller. The es within subsection (1), in cases in which court in the Angelo Toso Case, supra, calls attention to the fact that, prior to the enactment by most of the states of the Uniform Sales Act, a distinction was made by some courts, including the Pennsylvania courts, between a seller who was a producer, that is, a grower or manufacturer, and a seller who was a dealer.

"But," it continues, "the Pennsylvania Sales Act used terms which on their face seem to abolish this distinction (as by like terms in the English Sale of Goods Act the distinction was abolished), for they define the seller, on whose skill and judgment the buyer relies, as one 'whether he be grower or manufacturer or not.'"

It cites Griffin v. Metal Products Co., 264 Pa. 254, 107 Atl. 713, as settling the question in Pennsylvania.

Griffin v. Metal Products Co., supra, construed a contract for the sale of high speed steel, and centered on the question whether there was an implied warranty that the steel should be reasonably fit for the purpose for which the seller knew it was to be used. The court said:

"Before the passage of the act, it had been repeatedly so held, so far as relates to the grower or manufacturer of the goods sold, and the only change made thereby was to extend the rule to every seller 'whether he be the grower or manufacturer or not.'"

thenceforth to be immaterial."

To the same effect is Williston on Sales, § 248.

[2] We do not think the testimony offered by appellant and excluded by the trial court was open to the objection that it violated the rule against admitting parol evidence to vary or add to a written contract. Apart from any modification of this rule under the Uniform Sales Act in the matter of implied warranties (Benjamin on Sales, p. 716), even before the adoption of that act, it was the law of this state that as to the subject-matter of a contract extrinsic evidence may and must be received and used to make that clear, if necessary for that purpose; that the contract must be applied to its subject-matter by evidence from without. Such evidence, however, is not to be used to contradict or vary the written instrument, but to aid, uphold, and enforce it as it stands. Stockham v. Stockham, 32 Md. 196; Roberts v. Bonaparte, 73 Md. p. 204, 20 Atl. 918, 10 L. R. A. 689; Chesapeake Co. v. Goldberg, 107 Md. at P. 488, 69 Atl. 37, 15 Ann. Cas. 879; Dronenburg v. Harris, 108 Md. at p. 614, 71 Atl. 81; United Railways Co. v. Wehr, 103 Md. 323, 63 Atl. 475; Am. Bonding Co. v. U. S. F. & G. Co., 131 Md. at p. 203, 102 Atl. 369. There is certainly enough ambiguity about

In Benjamin on Sales (6th Eng. Ed.) p. 716, the description of the goods sold as "steel it is said:

"The distinction taken at common law Between cases where the buyer had an opportunity of examining the goods and those in which he had none (a distinction which clearly appears from the language of rule 1 when contrasted with that of 3 and 4 of Mellor, J.'s classification in Jones v. Just) has been abrogated by the Code. Instead of a presumption that a buyer, who might have inspected the goods, bought on his own judgment, in future whether he so bought or not will be a question of fact, and an opportunity of examination and even an actual examination will be immaterial. And no distinction is drawn by the Code between contracts of sale of specific as distinguished from those of unascertained goods. At common law the buyer of a specific thing for a particular purpose took the risk of the fitness of the thing bought."

He quotes from Palles, C. B., and Andrews, J., in Wallis v. Russell, 2 Ir. R. 585, C. A., as follows:

"In fact, the view of the Legislature appears to have been that, instead of the law, as

shells, 3 inch, 6 inch, and 9 inch," to permit of oral explanation, under the authority of the cases above cited.

The case of Hattiesburg Plumbing Co. v. Carmichael, 80 Miss. 66, 31 South. 536, is a good illustration. There parol evidence was admitted as to the sense in which the word "artesian" was used in a contract to drive a well, there being a primary meaning, viz. a well where there is a natural flow, and a secondary meaning, viz. a well where the flow is produced by artificial means. It will be seen on examination of cases like Warren Glass Works Co. v. Keystone Coal Co., 65 Md. 547, 5 Atl. 253, where oral testimony was excluded that the exclusion was on the ground that the terms of the contract were plain and needed no explanation.

[3] Having reviewed at some length the law applicable to the case, the exceptions can be disposed of briefly. The first question to which objection was sustained was a proper question on cross-examination, and the court erred in sustaining the objection.