Suppose the Villa Bella, undoubtedly incompetent to fulfil the task assigned to her, and with terrible danger to life, occupies a period beyond all time in the contemplation of the parties, a year we will say, instead of seventy days; yet the captain would be liable, and he would be met with the statement, 'You took the risk and must abide by it,' so that nothing could he recover for the valuable time spent by him, and for losses incurred by making good the defects, and paying for expenses brought about by the protracted voyage. If the plaintiff at an earlier stage had made himself acquainted with the state of this steamer, and had refused to perform the duties imposed on him on the ground of the impossibility of carrying out the contract, it was said in argument that he would be held liable for such refusal. Now, either the grounds of his refusal would be no answer - the impossibility being short of a physical impossibility; or they would be an answer to an action at the suit of the defendant company. This shows that there was an implied con tract on the part of the defendants that the Villa Bella should be fit for the - The sale by a manufacturer of goods ordered from him in his own specialty implies that these goods were manufactured by him. Thus, in a case1 in the English Court of Appeals in purposes of the voyage, and therefore an undertaking on the part of the defendants that the Villa Bella should be reasonably fit for the services the plaintiff undertook to perform in her."

In the opinion of Brett, L. J., arguing for reversal, we have the following:

"The Villa Bella was a vessel with damaged engines at the time the contract was made; it was that vessel with these engines, such as they were, that the plaintiff undertook to conduct across the Atlantic. Now I think there would be an implied contract on the part of the defendants that they would not, by want of reasonable care, allow that vessel with its damaged engines to get more out of repair at the time the voyage was to commence than it was at the time that the contract was made. I think they were bound by an implied contract to take all reasonable care to keep the vessel as good and as efficient for the work it was to do as it was at the time the contract was made. But it would be to say that they were bound to make it better than it was at the time of the contract, if it is to be said that they were bound to hand it over to the plaintiff in a state reasonably fit for the purpose of the work it was to do. Now, as I understand my lord, he would not imply such a contract as that, but if he would, I must say that, with all deference, I cannot agree to it. When there is a specific thing, there is no implied contract that it shall be reasonably fit for the purpose for which it is hired or is to be used. That is the great distinction between a contract to supply a thing which is to be made, and which is not specific, and a contract with regard to a specific thing. In the one case you take the thing as it is, in the other the person who undertakes to supply it is bound to supply a thing reasonably fit for the purpose for which it is made. Therefore it seems to me that the judg-ment of my lord really does, I believe, come to what was the opinion of Lord Coleridge, although in words he negatives it. It seems to me that he holds that the defendants were bound to supply this large tug in a condition reasonably fit for the purpose for which the contract was made, and the breach upon which he relies really is that it was not so fit, whereas it seems to me that there was no such implied contract. I wish to put my view as plainly as I can. If there had been evidence in this case that, after the contract was made, the machinery, from want of reasonable care by the defendants, had become in a worse condition than it was at the time of the contract, I should have thought that there would have been a breach of contract, for which the defendants would have been liable. But I find no such evidence. The only misfortune about the tug was that the machinery at the time the contract was made was in such a condition that the vessel was not reasonably fit for the purpose of taking barges across the Atlantic. Therefore the misfortune which happened was the result of a risk which was run by the plaintiff, and of which he cannot complain, and consequently he has no cause of action as regards the Villa Bella."

1 Johnson v. Raylton, L. R. 7 Q. B. D. 438. See remarks in Chicago Packing Co. v. Tilton, 87 111. 555; and comments in Alb. Law J. Nov. 26, 1881, and in Scottish Jour, of Jur. infra, sec 223.

1881, the defendants agreed to buy from the plaintiffs, who were manufacturers of iron plates, 2000 tons of iron ship plates, the iron to be of the quality known as "Crown," to pass on Lloyd's survey, to be delivered at the defendants' ship-yard. The document containing the contract was headed, "The Moor Ironworks, Stockton-on-Tees," and stamped with the plaintiffs' trade-mark. In consequence of the temporary closing of the plaintiffs' works, they were unable to supply plates of their own manufacture, but supplied plates of the quality known as " Crown," passed at Lloyd's. The defendants refused to accept these. Suit was brought on the contract. At the trial, the defendants tendered evidence of mercantile usage that the manufacturer who contracted to sell could not fulfil his contract by supplying articles manufactured by some one else. This evidence was rejected, and judgment was entered for the plaintiffs. It was held (Bramwell, L. J., dissentiente) that judgment should be entered for the defendants, the onus being upon the plaintiffs to show a mercantile usage that the manufacturer who contracted to sell could fulfil his contract by supplying articles manufactured by some one else, and no such evidence having been tendered. In the course of his opinion, Cotton, L. J., said: " If the contention of the plaintiffs is right, they are at liberty to supply goods of any maker, and, therefore, in my opinion, it is not material with reference to the question now under consideration that the plaintiffs in fact proposed to supply plates as good as those manufactured by themselves, though this would be material on the question of damages if the defendants were suing the plaintiffs for breach of their contract. The plaintiffs relied on two recent decisions of the Court of Session, which no doubt are in their favor.1 But, although we ought to pay respect to the opinion on a point of law common to both England and Scotland expressed by that court, their decisions cannot be considered binding here, and the authority of these cases is much diminished by the fact that Lord Young dissented from the opinions of the majority of the court. I think the view of Lord Young more correct than that of the majority, and I am of opinion that when a purchaser orders goods from a firm which is a manufacturer only of such goods, not a dealer in them, then, unless it is shown that in the particular trade, or as regards the particular goods, there is a practice or usage for the manufacturer to supply the goods of other makers, the purchaser must be assumed to have contracted with the particular manufacturers in reliance on the general excellence of the work of their firm, and is entitled, in the absence of any express stipulation to the contrary, to have, in performance of the contract, goods of the manufacturers' own make. It is said that the clause as to strikes shows on this contract a contrary intention. But this is not, I think, the necessary or fair construction of this clause. I think the clause rather assumes that stoppage of the manufacturers' works would probably prevent them from performing their contract, though notwithstanding the stoppage of the works the manufacturers might have plates of their own make which they would supply. The result, in my opinion, is that judgment should be entered for the defendants; for it would be for the plaintiffs to show that the custom of the trade enabled them to supply ship plates of other makers, and, as the plaintiffs objected to the evidence tendered by the defendants to show the usage of the trade, we ought, I think, to assume that the plaintiffs could not adduce such evidence as, in my opinion, is necessary to support their contention.".

1 As to these cases see infra, note to sec 223.