It is insisted by the defendant in error that the value of the matter really in dispute here is less than the amount requisite to give this court jurisdiction. Upon this ground a motion to dismiss was heretofore made, and was denied. To that ruling we adhere. Upon the pleadings it is apparent that the defendant asserts its right to judgment for $6,619.70 after crediting plaintiff, not only with the sum specified in the contract, but with every other sum to which he is entitled in the accounting. This is conclusive as to our jurisdiction upon this writ of error.
It was not claimed on the trial, nor is it contended here, that the company made any statement or representation as to the nature or character of the false work it did, and which, by the contract, Hamilton agreed to assume and pay for. But there was evidence tending to show that the insufficiency of that false work was unknown to Hamilton at the time the contract was made; was not apparent upon any examination he then or could have made; and was not discovered, indeed, could not have been discovered, until, during the progress of the erection of the bridge, the false work was practically tested.
The court, among other things, instructed the jury, at the request of plaintiff, and ov r the objections of the defendant, that by the contract-looking at all the circumstances attending its execution and giving to its terms a fair and reasonable interpretation-there was an implied warranty upon the part of the company that the false work it did, and which plaintiff agreed to assume and pay for, was suitable and proper for the purposes for which the bridge company knew it was to be used. This instruction was accompanied by the observation that if the evidence showed 'that the particular work which was said to be defective was such that the plaintiff could not by examination ascertain its defects for if they were apparent by mere examination of the false work it was the duty of the plaintiff to make that good-he had the right to rely upon the implied warranty; that is, if the defects were such that they could not be, by ordinary observation and care on behalf of the plaintiff, ascertained and found out.' That instruction presents the only question we deem necessary to determine. Although there are several assignments of error, they depend, as counsel for plaintiff in error properly concede, upon the inquiry whether the court erred in ruling that by the terms of the contract there was an implied warranty that the false work constructed by the bridge company was suitable and proper for the purposes for which it was to be used by Hamilton.
The argument in behalf of plaintiff in error proceeds upon the ground that there was a simple transfer by the company of its ownership of the work and materials as they existed at the time of the contract; that Hamilton took the false work for what it was, and just as it stood; consequently, that the rule of caveat emptor applies with full force. The position of counsel for Hamilton is that, as in cases of sales of articles by those manufacturing or making them, there was an implied warranty by the bridge company that the work sold or transferred to Hamilton was reasonably fit for the purposes for which it was purchased. The cases in which the general rule of caveat emptor applies are indicated in Barnard v. Kellogg, 10 Wall. 388, where, speaking by Mr. Justice DAVIS, the court observed that 'no principal of the common law has been better established, or more often affirmed, both in this country and in England, than that in sales of personal property, in the absence of express warranty, where the buyer has an opportunity to inspect the commodity, and the seller is guilty of no fraud, and is neither the manufacturer nor grower of the article he sells, the maxim of caveat emptor applies.' An examination of the ground upon which some of the cases have placed the general rule, as well as the reasons against its application, under particular circumstances, to sales of articles by those who have manufactured them, will aid us in determining how far the doctrines of those cases should control the one before us.