amounts to an undertaking that the work shall be conformable to the account so given of it (o).

A sale of goods by sample, is, in effect, a sale thereof by warranty (p) but if there be sale notes, or any other written agreement, not alluding to the sample, there is no sale by sample; either because the parties are presumed to abandon the sample as the criterion of the quality of the goods, or, for the more technical reason, that no parol evidence can be received to add to or vary a written agreement (q). Therefore the vendee cannot vacate the contract if the goods are conformable to the written warranty, although they differ from a sample shown to him at the time of the sale (r). And an action lies on a written warranty, if the goods do not answer the description therein-mentioned, although they accord with a sample shown when they were bought (s).

Where there is an express, written, (or, it seems, verbal,) warranty, the vendee is not at liberty to avail himself, in addition thereto, of any representations not embodied in the contract, and made by the vendor without fraud (t).

A general warranty will not extend to guard against defects that are plain and obvious to the senses of the purchaser, and require no skill to detect them: as, if a horse be warranted perfect, and want an ear or a tail, &c. (u). But if, on the sale of a horse, the seller agree to deliver it sound and free from blemish, at the expiration of a specified period, the warranty is broken by a fault in the horse when delivered, although such defect existed and was patent or obvious at the time of the sale (x). And as some splints cause lameness, and others do not, a splint is not one of those patent defects against which a warranty is inoperative; and the defendant having warranted a horse sound at the time of the contract, and the horse having afterwards become lame from

779, 786; Kain v. Old, 2 B. & C.634; 4 D. & R. 61, S. C.; ante, 88; Jones v. Bright, 3 M. & P. 173, per Best, C. J.; 5 Bing. 533, S. C. As to fraudulent representations in general; Dobell v. Stevens, 3 B. & C. 623; 5 D. & R. 490, S. C.; see post.

(u) 2 Bla. C. 165, 166; Finch L. 189; Butterfeild v. Burroughs, 1 Salk, 211; Southerne v. Howe, 2 Rol. R. 5. (x) Liddard v. Kain, 2 Bing. 183.

the effects of a splint, visible when the horse was bought, it was held, that the warranty was broken (y).

Sale "with all faults."-It appears to be now settled, that, if goods are sold expressly "with all faults," the seller is not liable to an action in respect of latent defects, although he was aware thereof, without disclosing them to the vendee; unless some artifice or fraud was practised to prevent the latter from discovering such defects (~). But though a sale be "with all faults," the vendor is liable on an express warranty against any particular defect. Thus, where an advertisement for the sale of a ship described her as "a copper-fastened vessel," adding, "that the vessel was to be taken with all faults, without any allowance for any defects whatsoever;" and it appeared that she was only partially copperfastened; it was held that the vendor was liable (a).

Warranty against future defects.—It is laid down by Sir William Blackstone (b), that "a warranty can only reach to things in being at the time of the warranty made, and not to things in futuro, as that a horse is sound at the time of sale, and not that he will be so two years hence." There seems, however, to be no valid reason for holding that a party may not, upon good consideration, impose upon himself this prospective responsibility.And in Eden v. Parkinson (c), Lord Mansfield said, "there was no doubt but you may warrant a future event."

Warranty, when made.-In general, the warranty must be made during the treaty, or before or at the time of the sale, or, at least, before the performance of the substantial terms thereof. A warranty after the sale was complete, or the contract was performed, would seem not to be binding, for want of consideration (d).

Rights and liabilities of the parties.—It is not necessary to offer to return the goods previously to an action for the breach of an express warranty, or at any other time (e). The purchaser

(y) Margetson v. Wright, 8 Bing. 454; 1 Moor & S. 622, S. C.; 7 Bing. 603, S. C.

(z) Baglehole v. Warlters, 3 Camp. 154; Schneider v. Heath, id., 506; Pickering v. Dowson, 4 Taunt. 779, 785; sed vide Mellish v. Motteux, Peak R. 115. As to the sale of a term of years in land, with all faults and defects, &c., see Early v. Garrett, 9 B.

may resell, and declare specially for the loss or difference (ƒ): nor is there any occasion even to give notice of the breach of warranty to the seller; but the not giving such notice will be a strong presumption against the buyer that the goods, at the time of the sale, had not the defect complained of, and will make the proof on his part much more difficult (g). If there has been no offer to return the goods, the measure of damages is merely the difference between the sum given and the real value, although there has been no re-sale by the vendee (h). And if the warranty be coupled with an express undertaking to take back the goods, and return the money if, on trial, the goods should be found defective, the buyer must, in such case, return the article as soon as he discovers its faults, or within a reasonable time afterwards, in order to maintain an action on the warranty; unless he has been induced to prolong the trial by any subsequent misrepresentation of the seller (i).

Where an offer to return is made within a reasonable time by the vendee, and the seller is legally bound to take the goods back, but refuses to do so, they remain at his risk (k).

Where the vendor of a warranted chattel, whether it be a specific chattel or not, sues for the price or value, it is competent to the defendant, the purchaser, in all cases, to prove the breach of warranty in reduction of the damages; although the goods were sold at a fixed price, and have not been returned, or have been resold by the defendant, the vendee (1).

In the case of an executory contract, (as distinguished from the sale of a specific chattel,) as where, for instance, an article is ordered from a manufacturer, who contracts that it shall be of a certain quality, or fit for a certain purpose; and the article sent as such is never completely accepted by the party ordering it; the purchaser may return the article as soon as he detects its deficiency, and may thereby wholly defeat an action for the price, if he have done nothing more, in the interim, than was necessary to give the goods a fair trial (m).

(f) Maclean v. Dunn, 1 M. & P. 761; 4 Bing. 722, S. C.

(g) Per Lord Loughborough, C. J., Fielder v. Starkin, 1 H. Bla. 19; Poulton v. Latimore, 9 B. & C. 359.

(h) Caswell v. Coare, 1 Taunt. 566; Germaine v. Burton, 3 Stark. R. 32. (i) Adam v. Richards, 2 H. Bla. 573. (k) O'Kell v. Smith, 1 Stark. R. 107.

(1) Cormack v. Gillis, cited 7 East, 480; King v. Boston, id., 481, n.; Germaine v. Burton, 3 Stark. R. 32; Basten v. Butter, 7 East, 480. And see, particularly, Street v. Blay, 2 B. & Ad. 456.

(m) Street v. Blay, 2 B. & Ad. 463, per Lord Tenterden, C. J.

In Poulton v. Lattimore (n), which was an action for the price of cinq foin seed, it appeared that the vendor (the plaintiff) had warranted it good new growing seed. Soon after the sale, the defendant was told, by a skilful person, that it did not correspond with the warranty; but the defendant did not communicate this to the plaintiff, or return the seed. On the contrary, he sowed part, and sold the residue to two persons. The seed would not grow, and was unproductive; and the persons to whom the defendant sold part did not pay him, and declared they never would. It was held, that the breach of warranty might be shewn as an answer to the action. The Court held, that from the nature of the articles, and of the warranty, the buyer was entitled to try the seed, by sowing it; and that as no advantage had accrued from the seed, the plaintiff could not recover any part of the price.

But where the contract of sale and warranty has reference to a specific chattel, in esse, and seen by the purchaser at the time of the sale, (as a horse, &c.,) and the purchaser has accepted the article, (even though he accepted it before he discovered the breach of warranty,) it seems that he cannot effectually tender back or return the goods, so as to obtain a defence to an action for the price, the vendor refusing to take back the chattel. In Street v. Blay (0), Lord Tenterden C. J., in delivering the judgment of the Court, said, "It is not necessary to decide, whether in any case the purchaser of a specific chattel, who having had an opportunity of exercising his judgment upon it, has bought it with a warranty that it is of any particular quality or description, and actually accepted and received it into his possession, can afterwards, upon discovering that the warranty has not been complied with, of his own will only, without the concurrence of the other contracting party, return the chattel to the vendor, and exonerate himself from the payment of the price; on the ground that he has never received that article which he stipulated to pur. chase. There is, indeed, authority for that position." [His Lordship referred to Lord Eldon's dictum, in Curtis v. Hannay, 3 Esp. R. 83, and to Starkie on Evidence, 1st ed. part iv., p. 645.] "It is, however, extremely difficult, indeed impossible, to reconcile this doctrine with those cases in which it has been held, that where the property in the specific chattel has passed to the

(n) 9 B. & C. 259

(0) 2 B. & Ad. 460.

vendee, and the price has been paid, he has no right, upon the breach of the warranty, to return the article and revest the property in the vendor, and recover the price as money paid on a consideration which has failed; but must sue upon the warranty; unless there has been a condition in the contract authorising the return, or the vendor has received back the chattel, or has been guilty of a fraud, which destroys the contract altogether (p). If these cases are rightly decided, and we think they are, and they certainly have been always acted upon, it is clear that the purchaser cannot, by his own act alone, unless in the excepted cases before mentioned, revest the property in the seller, and recover the price when paid, on the ground of the total failure of consideration; and it seems to follow that he cannot, by the same means, protect himself from the payment of the price on the same ground." In Street v. Blay, the formal decision of this general question was not absolutely necessary, because the defendant, (the vendee of the horse which had been warranted sound, and who was sued for the price,) had re-sold the animal; and it was held, that, on this ground, he could not set up the breach of warranty as an answer to the action, although he had re-purchased the horse on its unsoundness being discovered, and had tendered it to the plaintiff.

The omission of the vendee either to return the goods, or offer so to do, within a reasonable time, or to complain of the breach of warranty, has, however, been held to debar him from a defence to an action for the price, even in cases where an early objection to, or return of, the goods might afford him a defence, or right to reduce the price. Thus, in Grimaldi v. White (q), the party had agreed to purchase, at a stipulated price, a painting which was to be executed conformably to a specimen exhibited. On delivery it was found to be of inferior execution, but the buyer, though he objected, did not return it ; and it was held, that he could not, in an action for goods sold, set up the inferiority of it to the specimen, because he should have returned it, and so have rescinded the contract. In Groning v. Mendham (r), the action was brought for the price of clover seed, sold by sample; Lord Ellenborough held, that before the defendant could go into such a defence he must prove that he gave notice of his objection to the seller, and offered to

(p) See post 361, 362.

(q) 4 Esp. R. 95. Butter, 7 East. 479.

See Baxter v.

(r) 1 Stark. R. 257. See Baxter v. Butter,7 East. 479.