and, therefore, if the defendant can show that the Damages. article was utterly unserviceable and valueless, the plaintiff cannot recover (c).

pulated

contract as

2. Where there has been a stipulated price, and Where stialso a warranty, or a special contract as to the price, and quality of the goods, it is still open to the defend- to quality. ant to reduce the damages by showing that the quality is not conformable to the contract; for the specific sum is to be given only for the specific quality, and if the plaintiff has not performed what he engaged to do, he cannot call for performance on the part of the defendant. This is now fully decided (d); although it was formerly held, that, even where there was an express warranty not complied with, it was no defence to an action for the stipulated price, but that the defendant's remedy was by a cross action (e). The breach of

(c) Basten v. Butter, 7 East, 479; Duffit v. James, cited 7 East, 480; Farnsworth v. Garrard, 1 Campb. 38.

(d) Street v. Blay, 2 B. & Adol. 464; Allen v. Cameron, 3 Tyrwh. 907; S. C. 1 Cr. & Mees. 832; Chapel v. Hickes, 2 Cr. & M. 214; S. C. 4 Tyrwh. 43; King v. Boston, cited 7 East, 481, n. See the observations and judgment of the Court in Basten v. Butter, 7 East, 479 et seq. See Thornton v. Place, 1 M. & Rob. 218.

(e) Broom v. Davis, cited 7 East, 480, n.; Cormack v. Gillies, ib. 481; Morgan v. Richardson, ib. 482, n. It may be observed that the question is not affected by the subject of conditions precedent; because, although the breach of warranty might have been pleaded in bar to an action for not accepting, on the ground of the vendor's non-performance, yet, by accepting the goods, the defendant waives the condition. Vid. supra, p. 230, 235.

Damages. warranty cannot, indeed, be pleaded in bar of the action brought by the vendor for the price; because, after the contract has been executed, and the vendee has accepted the goods, it is not competent for him to rescind it of his own accord, though the vendor have been guilty of a breach of undertaking (f). But the cases have established, that the breach of the warranty may be given in evidence in mitigation of damages, on the principle, as it should seem, of avoiding circuity of action; and there is no hardship in such a defence being allowed, as the plaintiff ought to be prepared to prove a compliance with his warranty, which is part of the consideration for the specific price agreed by the defendant to be paid" (g). Thus, where an order has been given by the defendant, the plaintiff cannot recover the stipulated price without proof that the goods supplied were conformable to such order (h). So, where the goods are sold by sample (i), or where there has been a representation on the part of the vendor, or any

(f) Street v. Blay, 2 B. & Ad. 456. Especially if the vendee has exercised acts of ownership, such as parting with the property by a resale of the chattel; id. See below, Part 2, Chap. iii.

(g) Per Lord Tenterden, C. J., delivering the judgment of the Court, 2 B. & Ad. 462, 463. And see id. 464.

(h) Hayden v. Hayward, 1 Campb. 180; Sinclair v. Bowles, 9 B. & C. 92; Ellis v. Hamlen, 3 Taunt. 52; Townsend v. Neale, 2 Campb. 190; Duncan v. Blundell, 3 Stark. N. P. C. 6.

(i) Germaine v. Burton, 3 Stark. N. P. C. 32.

express warranty of the quality (k), he must prove Damages. that the goods accord therewith. If an article made to order is constructed of more costly materials than the purchaser contracted for, he is not bound either to pay a higher price than that stipulated, or to return the article ().

must object

able time.

However, even in the case of a special contract Vendee of quality, the vendee ought to object within a in reasonreasonable time, if he means to dispute the value of the goods; for if he keeps them for a longer time than is necessary to ascertain their quality, so that the value can no longer be truly estimated, he will be held to have acquiesced, and will be compelled to pay the full price (m). Thus, where a quantity of rice had been sold by sample, and the vendee, after discovering its inferiority, set it up for resale in hopes of making a profit, but, there being no bidders, bought it in himself, it was held

(k) Poulton v. Latimore, 9 B. & C. 259; Liddard v. Kain, 2 Bingh. 183; Lomi v. Tucker, 4 C. & P. 15; Parmeter v. Burrell, 3 C. & P. 144; Lewis v. Cosgrave, 2 Taunt. 2.

(1) Wilmot v. Smith, 3 C. & P. 453.

(m) Milner v. Tucker, 1 C. & P. 15; Percival v. Blake, 2 C. & P. 514; Cash v. Giles, 3 C. & P. 407; Cutler v. Close, 5 C. & P. 337, 339; Grimaldi v. White, 4 Esp. 95; Groning v. Mendham, 1 Stark. N. P. C. 257; Fisher v. Samuda, 1 Campb. 190; Prosser v. Hooper, 1 B. Moore, 106; Burn v. Miller, 4 Taunt. 745; Yeats v. Pim, 2 Marsh. 141; S. C. 6 Taunt. 446. Even where there has been actual fraud, the vendee will be precluded by acquiescence after detecting the fraud; Campbell v. Fleming, 1 Ad. & Ell. 40. Supra, p. 133.

Damages. that he had precluded himself from objecting to

Reasonable

time allowed.

the quality (n). So, where barilla was sold, warranted to be of the best quality for making soap, and the vendee complained of its bad quality, but employed it in eight successive boilings, he was held liable for the full price (o). The ground of the decision, however, in the last case, was not merely the acquiescence presumed from lapse of time, but that the defendant had by his own act prevented the possibility of ascertaining the true value; for, it is decided that, where there has been an express warranty, the vendee, even after exercising any act of ownership, (such as resale of the chattel,) and deriving pecuniary benefit therefrom, will nevertheless be always entitled to have the damages reduced, as long as he would be entitled to damages in a cross action against the vendor (p).

A reasonable time will always be allowed to the vendee for due trial of the commodity purchased (q); for, it may sometimes happen that the

(n) Parker v. Palmer, 4 B. & A. 387.

(0) Hopkins v. Appleby, 1 Stark. N. P. C. 477.

(p) Street v. Blay, 2 B. & Adol. 464, per Lord Tenterden, C. J.; De Sewhanberg v. Buchanan, 5 C. & P. 343. However, the exercising acts of ownership, and appearing to acquiesce in the contract, will render the proof on the part of the vendee more difficult, and may raise a presumption that the article was such as he intended to purchase; See Prosser v. Hooper, 1 B. Moore, 106. Post, OF Warranty.

(q) Okell v. Smith, 1 Stark. N. P. C. 107.

quality cannot be ascertained by immediate tests, Damages. as in the case of seeds for growing (r).

tity of

goods sup

plied.

Again, where the contract is to deliver a cer- As to quantain specified quantity, the purchaser will be liable for whatever portion is delivered, provided he elects to retain it, instead of rescinding the contract on the ground of the non-delivery of the whole quantity (s). Certainly, where a specific quantity is to be delivered by a certain time, the vendor cannot maintain an action for part until that time has expired; because, until then, the vendee has the option of returning the part delivered (t). But if he does not so return it, he will become liable for so much, because he will not be allowed to adopt the contract in part by retaining the goods, and renounce it in part by refusing to pay the stipulated value (u). So, where the defendant has contracted for a certain

(r) Poulton v. Lattimore, 9 B. & C. 259; "which seems to shake Groning v. Mendham, 1 Stark. N. P. C. 257," per Bayley, B., 3 Tyrwh. 911.

(s) Oxendale v. Wetherell, 9 B. & C. 386; Bragg v. Cole, 6 B. Moore, 114; Shipton v. Casson, 5 B. & C. 378; Champion v. Short, 1 Campb. 53. Unless the express agreement were that plaintiff was not entitled to any thing unless he performed the entire contract; Bates v. Hudson, 6 D. & R. 3; Sinclair v. Bowles, 9 B. & C. 92.

(t) Waddington v. Oliver, 2 N. R. 61; Walker v. Dixon, 2 Stark. N. P. C. 281.

(u) See the judgment of the court, Oxendale v. Wetherell, 9 B. & C. 387, 388.-Supra.