raise an implied warranty of reasonable fitness or capability in the case of a bailment for hire of a specific dredge which the bailee had the opportunity to examine, and which he saw, where the written agreement of the parties contained no reference to the use to which the dredge was to be put, and notwithstanding that the defendant's proof showed that at the time the dredge was taken over by him, it was not in good working order, that fact is not a defense to an action for the agreed rent. The court said that where one hires a specific and ascertained thing, with its own individual identity, he should be compelled to take it as it is, if he foregoes protection obtainable by means of an express warranty, for a contrary doctrine would put a premium on carelessness and tend to promote fraud, and would permit a person to hire a particular thing at a price so low as to invite suspicion, without either examining or inquiring into its condition or capacity, and yet be given by law, by the way of an implied warranty, all the advantage that a careful and prudent man would get from an alert protection of his interests. Nor can the word "dredge," used in the written contract in describing the machine leased, be given the effect of adding to the plaintiff's engagement an obligation which would not otherwise exist, for the word is merely a general description of the type of vessel that was bailed, and cannot imply any warranty as to the condition thereof.

A contract leasing construction equipment "which is now let upon the ground, as it is seen and inspected by the parties hereto," which specifically enumerates certain parts of the equipment, and mentions "rails, joints, fish plates, and bolts for approximately 1 mile of 24-inch-gauge railroad," and for "2 miles approximately of pipe," cannot be properly construed as a contract for any precise number of feet of rails or pipe, and the fact that there are considerably less than 1 mile of rails and 2 miles of pipe does not, where it is shown that the lessee got all the rails and pipes that were upon the ground, give a claim for damages 31 A.L.R.-35.

for the deficiency in the equipment, for there was no warranty of any particular length. Peterson v. Jahn Contracting Co. (1917) 96 Wash. 210, 164 Pac. 937.

An agreement between a contractor and his subcontractor for the rental by the former to the latter of machinery and appliances already on the ground at the date of the contract, which appears from the oral testimony to have been inspected by the subcontractor, for use in the execution of the work of the subcontract, does not raise an implied warranty of the fitness of the machinery for such work, or an implied undertaking on the part of the principal contractor to repair defects therein. E. L. Garrettson v. Rinehart & D. Co. (W. Va.) supra, holding that there could be no recovery for money expended in repairing the rented machinery, upon the ground that the liability in that respect was precluded by the terms of the contract.

A contract, for a lump sum, to take a specified steam tug towing barges to Brazil, the hirer to pay the crew and provide provisions for those on board for the trip, does not imply an undertaking by the lessor that the tug shall be reasonably efficient and fit for the purposes of the voyage, and no damages can be recovered on the theory of the breach of warranty, for losses due to the defective condition of the engines of the tug, which were in a damaged condition at the time of the hiring, unknown either to the defendant or to the plaintiff, it not appearing that the engines were in a worse state when the plaintiff took possession and began the trip, than they were in at the time of the contract. Robertson v. Amazon Tug & Lighterage Co. (1881) L. R. 7 Q. B. Div. (Eng.) 598, 51 L. J. Q. B. N. S. 68, 46 L. T. N. S. 146, 30 Week. Rep. 308, 4 Asp. Mar. L. Cas. 496,-C. A., Cotton, L. J., states that, had the vessel not been ascertained and known to both parties at the time of the contract, the contract would have probably implied such warranty as was relied upon by the plaintiff; but, being made in reference to a known vessel, the contractor must, in the absence of

an actual stipulation, be considered as having agreed to take the risk of the greater or less efficiency of the chattel about which he contracted, for he was to determine the price and might examine it and satisfy himself of its condition and efficiency, and must be taken to have fixed the price so as to cover the risk arising from the condition thereof, which he might have examined if he had thought fit to do so. Bramwell, L. J., was of the opinion that the contract implied a warranty that the tug was in a reasonable state of repair, and in otherwise fit condition for the services contemplated by the contract, which was the holding of the court below.

But the mere fact that the lessor is asked for an article of a certain kind, capable of doing a certain class of work or accomplishing a given result, does not bring the case within this rule, for it is the use rather than the particular article that is being contracted for, and the selection by the hirer of one of the several articles distributed by the lessor would not ordinarily turn the nature of the hiring from one of use into one of the thing, for the hirer would still be relying upon the lessor's judgment, in which case the agreement, in its essence, would disregard the identity of the thing hired, and look chiefly to the results to be obtained from the use thereof. Builders' Brick & Supply Co. v. Walsh Transp. Co. (1919) 106 Misc. 460, 174 N. Y. Supp. 690, affirmed in (1919) 189 App. Div. 898, 178 N. Y. Supp. 881, supra. And to the same effect see Chew v. Jones (Eng.) supra. II.

IV. Miscellaneous.

The provision in a contract for the lease of a weighing machine that the machine shall be accepted upon the terms and conditions set forth in the contract, upon its meeting a certain test, does not create an implied warranty that the machine should continue as when tested throughout the life of the bailment. Pneumatic Scale Corp. v. Ideal Cocoa & Chocolate Co. (1915) 62 Pa. Super. Ct. 30.

And under such contract, which requires the lessee "to keep the machine

in good order and condition, and to procure of the lessor or his agents all parts for repairing same, and insert such parts at the lessee's own cost and charge," it is no defense to an action for rent that the machine has worn out and become antiquated, where such result is due to the failure of the lessee to keep it in repair, for, while the bailor impliedly warrants that the thing hired is of a character and condition to be used as contemplated by the contract, if the parties have, by an expressed written agreement, regulated the conditions under which the hiring takes place, the written agreement is the rule by which their rights are determined. Ibid.

But in Kline Chair Co. v. Guaglianome (1916) 65 Pa. Super. Ct. 319, in an action to recover rent under a lease of personal property, it was held that the averment in the affidavit of defense "that the goods leased were never satisfactory" was insufficient, because it did not aver that the contract provided that the goods should be satisfactory, or in what particular the goods were unsatisfactory, or what the plaintiff promised to do in connection therewith.

Where the lessee hired a barge with the understanding that it "was all right," he is not, after knowledge that the barge has sprung a dangerous leak, entitled to rely upon such statement, or indulge a presumption, against such supervening fact, that the barge was in fact all right, and in an action to recover for the loss of the barge, which sank while being used by the lessee after knowledge that it had sprung a dangerous leak, an instruction to the jury, "if the jury finds from the evidence that Higman (lessor), before Carmody (lessee) got the barge, told him that the barge was all right, then he had a right to rely upon it, and presume that the barge was in fact all right," is erroneous. Higman v. Carmody (1895) 112 Ala. 267, 57 Am. St. Rep. 33, 20 So. 480.

In an action for damages for failure safely to transport plate glass intrusted to the defendant for that purpose, brought on the theory that the defendant was a common carrier, the

defendant alleged as a defense that on the occasion in question he rented a truck, driver, and team to the plaintiff for the purpose of transporting glass, with the understanding that the plaintiff should assume responsibility for its transportation, and the court stated that in such case the defendant would owe no other duty to the plaintiff than to furnish him a team, truck, and driver reasonably suited for the transportation. The case was, however, disposed of on the ground that the defendant transported the glass as a carrier. Gurfein v. Rickard (1918) 92 Conn. 604, 103 Atl. 1002.

The hiring of a slave implies the warranty of title thereto, and, by reason of the title of the owner of the slave failing upon the passage of the 13th Amendment, the bailee is entitled to a pro tanto abatement of the price promised for the hiring. Mundy v. Robinson (1868) 4 Bush (Ky.) 342. And the bailee would be entitled to his pro tanto abatement should the title fail by reason of an eviction by a superior title. And to the same effect, see Hughes v. Todd (1865) 2 Duv. Ky.) 189, where it is said that the mere hiring implies a contract for indemnity if the hirer shall be evicted or disturbed by any lawful intrusion or eviction under a title paramount, or by lawful authority of the other contracting party.

But the enlistment of the slave in the Federal Army is not the kind of eviction under a paramount title for which the owner impliedly contracted to be responsible to the hirer, and the loss of his services due to such act does not entitle the hirer to any abatement of the price agreed to be paid for, while the contract implies that the hirer gives a stipulated price for the guaranteed title of the owner during the term, there is no implied guaranty of full or useful service for the

entire term, or any portion thereof, and, consequently, the sickness, death, or escape of the slave will be no legal failure of the consideration, and the resulting loss must be born by the hirer, who, by failing to provide for such contingencies, must be presumed to have undertaken the risk, without any abatement of the price which he unconditionally promised to pay the owner. Hughes v. Todd (Ky.) supra. In Harron, Rickard, & McCone v. Wilson, L. & Co. (1906) 4 Cal. App. 488, 88 Pac. 512, the plaintiffs executed a lease of hoisting machinery to the defendants, under which the defendants took possession of the property, and in an action to recover the rental reserved, none of which the defendants had paid, the defendants, admitting the execution of the instrument and the possession of the property described therein, interposed as a defense that they took possession of the property under a warranty by the plaintiff that the machinery had a certain capacity, which it in fact did not have, and that their agreement to pay was in consideration of the said warranty, and not otherwise, and that, upon ascertaining these facts, they immediately offered to return the machinery to the plaintiff; and it was held that the averment that, "upon ascertaining these facts," the defendants offered to return the machinery, with no statement as to when such facts were ascertained or the offer was made, made the answer uncertain, and a demurrer for uncertainty in that respect should be sustained, and that a second defense setting up a breach of the warranty did not constitute a defense to the action, since, on the face of the pleading, it did not appear that the two transactions were connected with each other, notwithstanding that the property specified in the defense. answered the same description as that specified in the complaint. G. S. G.

Hayden v. Collins, 1 Cal. App. 259, 81 Pac. 1120; Melvin v. Melvin, 8 Cal. App. 684, 97 Pac. 696; Doty v. Barker, 78 Kan. 636, 97 Pac. 964; Kenney v. Parks, 137 Cal. 527, 70 Pac. 556; Curry v. Colburn, 99 Wis. 319, 67 Am. St. Rep. 860, 74 N. W. 778; Pierson v. Fisher, 48 Or. 223, 85 Pac. 621; Foote v. Lichty, 60 Or. 542, 120 Pac. 398; Central Trust Co. v. Stoddard, 4 Cal. App. 647, 88 Pac. 806; 18 C. J. 198, § 95.

Mr. J. D. Taylor also for appellant. Messrs. O'Hara, Madeen, & Carmody, for respondent:

This is not an action for specific performance, but an action to establish a lost deed, which can be maintained.

Jacobson v. Roman, 57 Mont. 299, 188 Pac. 138; Cartright v. Cartright, 70 W. Va. 507, 74 S. E. 655, Ann. Cas. 1914A, 578.

All that it is necessary to allege in such complaint are the title of the plaintiff to the instrument, the description of the instrument, its loss and search, and failure to discover it.

13 Enc. Pl. & Pr. 353; Conlin v. Ryan, 47 Cal. 71; Thomas v. McCormack, 1 N. M. 369; Lloyd v. Simons, 97 Minn. 315, 105 N. W. 902; Brown v. Anderson Cottonwood Irrig. Dist. 183 Cal. 186, 190 Pac. 797.

The delivery of a deed to the grantee, even upon condition, vests the title absolutely in him.

Mowry v. Heney, 86 Cal. 471, 25 Pac. 17; Hammond v. McCollough, 159 Cal. 639, 115 Pac. 216; Lewis v. Brown, 22 Cal. App. 38, 133 Pac. 331; Bias v. Reed, 169 Cal. 33, 145 Pac. 516; Kenney v. Parks, 137 Cal. 527, 70 Pac. 556; Denis v. Velati, 96 Cal. 223, 31 Pac. 1; Stone v. Daily, 181 Cal. 571, 185 Pac. 665; Gilbert v. North America F. Ins. Co. 23 Wend. 43; Dyer v. Skadan, 128 Mich. 348, 92 Am. St. Rep. 461, 87 N. W. 277; Creveling v. Banta, 138 Iowa, 47, 115 N. W. 598; Devlin, Deeds, 314; Rogers v. Rogers, 53 Wis. 36, 40 Am. Rep. 756, 10 N. W. 2; Reed v. Smith, 125 Cal. 491, 58 Pac. 139; Johnson v. Craig, 37 Okla. 378, 130 Pac. 581; Follmer v. Rohrer, 158 Cal. 755, 112 Pac. 544; Baum v. Northern P. R. Co. 55 Mont. 219, 175 Pac. 872; Cartright v. Cartright, supra; Dyer v. Skadam, 128 Mich. 348, 92 Am. St. Rep. 461, 87 N. W. 277; Flynn v. Flynn, 17 Idaho, 147, 104 Pac. 1030.

In equity cases, where the decree was not in accordance with the findings, the court has frequently exer

cised its right finally to dispose of all the issues in the case, and to render a decree in accordance with them.

Bielenberg v. Eyre, 44 Mont. 397, 120 Pac. 243; Lowry v. Carrier, 55 Mont. 392, 177 Pac. 756; Barkley v. Tieleke, 2 Mont. 435; Foster v. Bender, 28 Mont. 526, 73 Pac. 121; Woolman v. Garringer, 2 Mont. 405; Stackpole v. Hallahan, 16 Mont. 40, 28 L.R.A. 502, 40 Pac. 80; Kimpton v. Jubilee Placer Min. Co. 16 Mont. 379, 41 Pac. 137, 42 Pac. 102; Love v. Shartzer, 31 Cal. 488: El Campo Light, Ice & Water Co. v. Water & Light Co. Tex. Civ. App.

132 S. W. 868; Kelley Lumber Co. v. Otelec Valley R. Co. 136 App. Div. 146, 120 N. Y. Supp. 415; Norman v. Eastburn, 230 Mo. 168, 130 S. W. 276; Jackson v. Jernigan, Tex. Civ. App. 77 S. W. 271; Reynolds v. Etna L. Ins. Co. 160 N. Y. 635, 55 N. E. 305; Indiana Millers' Mut. Ins. Co. v. People, 65 Ill. App. 355; Grant v. Creed, 54 Okla. 222, 153 Pac. 1110; Tagliaferri v. Grande, 16 N. M. 486, 120 Pac. 730; Duclos v. Kelley, 197 N. Y. 76, 89 N. E. 875.

Bennett, C., filed the following opinion:

Plaintiff, Robert Nicholson, commenced this action against Adalaide Nicholson personally, and as administratrix of the estate of William Nicholson, deceased, and Ida Owens. The complaint is as follows:

"Plaintiff complains of the defendants and for cause of action herein alleges:

"I. That William Nicholson died in the county of Ravalli, state of Montana, on or about the 13th day of June, 1920; being at the time of his death a resident of said county and state.

"II. That thereafter, and on, or about the 22d day of June, 1920, Adalaide Nicholson, widow of said William Nicholson, deceased, applied for letters of administration on the estate of said deceased, and that thereupon such proceedings were had in the district court of the fourth judicial district of the state of Montana, in and for Ravalli county, that the said Adalaide Nicholson was appointed the administrator of said estate, and that the said defendant is now the duly appointed,