Sisk

The action was brought to recover the balance due for the sale of what was known as a forty-horse power Foos type special horizontal engine. The agreed price was $1,642.50, of which $400 was paid at the time of the purchase. The defense, set forth in varying phraseology, is based upon the claim of a breach of warranty. The action was tried before a jury and a general verdict rendered for defendant in the sum of $400. The appeal is from the judgment and the order denying a motion for a Hew trial.

The first contention of appellant worthy of notice is that there was no implied warranty that the engine would do the work required of it. This proposition of law is urged by reason of the fact that the purchase was of a certain specified, well-known, staple article, from a seller who was not the manufacturer. There is a clear distinction between such transaction and the ease where the purchaser relies upon the judgment of the seller for the selection or manufacture of an article suitable and adequate for a certain purpose. There are many decisions upon the subject, among which is the carefully considered opinion of the supreme court of Kansas in the case of Ehrsam v. Brown, 76 Kan. 206 ,…