SALES AND NOTICES 3151

scription, and if the contract or sale be by sample, as well as by descrip-
tion, it is not sufficient that the bulk of the goods corresponds with the
sample if the goods do not also correspond with the description.

This section referred to in construing secs. 23 and 94. Engineering & Machine Co. v.
Swindell, 161 Md. 592.

In order to recover for a breach of an implied warranty or in an action of tort, for
a false warranty, plaintiff must by averment and proof bring his case within one of
sections of uniform sales act. What is a sale of goods "by description." When warranty
is implied. Flaccomio v. Eysink, 129 Md. 382.

An. Code, 1924, sec. 36. 1912, sec. 36. 1910, ch. 346, sec. 33 (p. 276).

33. Subject to the provisions of this sub-title and of any statute in
that behalf, there is no implied warranty or condition as to the quality
or fitness for any particular purpose of goods supplied under a contract to
sell or a sale, except as follows:

(1) Where the buyer, expressly or by implication, makes known to the
seller the particular purpose for which the goods are required, and it ap-
pears 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.

(2) Where the goods are bought by description from a seller who deals
in goods of that description (whether he be the grower or manufacturer
or not), there is an implied warranty that the goods shall be of merchant-
able quality.

(3) If the buyer has examined the goods, there is no implied warranty
as regards defects which such examination ought to have revealed.

(4) In the case of a contract to sell or a sale of a specified article under
its patent or other trade name, there is no implied warranty as to its fitness
for any particular purpose.

(5) An implied warranty or condition as to quality or fitness for a
particular purpose may be annexed by the usage of trade.

(6) An express warranty or condition does not negative a warranty
or condition implied under this sub-title, unless inconsistent therewith.

The provision of this section that there is no implied warranty as to defects which
examination by buyer ought to have revealed, applies to public sale of heifers examined
by buyer. King v. Gaver, 176 Md. 81.

Implied warranty of heating equipment not enforceable where plans and specifications
were so changed as to make it inadequate. Parker v. Morgan, 170 Md. 7.

Restaurant serving food to guest does not make sale under this section implying
warranty. Dining Hall Co. v. Swingler, 173 Md. 495.

This section referred to in construing secs. 23 and 94. Engineering & Machine Co. v.
Swindell, 161 Md. 596.

Where purchaser left to seller's judgment the grades and quantity of dynamite
proper to produce certain result, implied warranty does apply. Powder Co. v. Campbell,
156 Md. 346.

Under this section, "The Quiet May Automatic Oil Burner" held to be a trade
name, excluding any implied warranty of fitness for any particular purpose. May Oil
Burner Corp. v. Munger, 159 Md. 605.

See notes to sec. 30.

The important change made by this section in the law as it existed prior thereto
was to put seller who is not grower or manufacturer, in position formerly held by
such grower or manufacturer only, in reference to implied warranty mentioned. This
section is in effect a qualification of doctrine of caveat emptor. Authorities reviewed.
Parol evidence admissible; ambiguity. Contract divisible. Luria Bros. & Co. v. Klaff,
139 Md. 593.

A sale of corn held to be a sale by description, and hence an implied warranty arose
under paragraphs (1) and (2) of this section. The vendor knew that corn was to
be used for seed purposes; no samples furnished. Prayers. Robinson v. Barteldes Co.,
139 Md. 494.

Sub-sec. (4) of this section applied to a sale of muriate of potash. No evidence of
custom or usage in trade is admissible which conflicts with a statute. Fertilizer Co. v.
Trona Corp., 142 Md. 249.

See notes to sec. 32.