he accepted the goods, or that he has waived his right to insist upon such warranty. But we think it would be an extremely unjust rule to interpret as an implied waiver the conduct of the purchaser in receiving the goods which do not exactly correspond to the warranty, merely be cause he might, by examination, have discovered the defect. It often happens that the purchaser is so situated that it is necessary for him to accept the article in its defective condition. It would indeed be singular that one who had placed him in that position should be allowed to escape liability on his contract of warranty. In many cases the inference of a purpose to rely upon the warranty is stronger than the inference of a purpose to pay the price of a good article for a defective one. In the case at bar, the jury would have been justified in finding that defendant could not, without particular examination, have discovered that the twine was not pure Manilla. In favor of one who has warranted an article, the purchaser does not owe the duty of careful inspection. He may rely on the warranty. There is much confusion in the authorities. This is the consesequence of too much refinement in reasoning, and the making of many nice distinctions. The law on this subject should be adjusted to the needs of the business world, and be made as simple as possible. Without attempting to anticipate the exceptions to the general rule which in the future it may be found necessary to establish, we believe it to be in the interests of justice, and to fairly ex

press the sense of business men upon the subject, that whatever form a warranty assumes, if there is in fact a warranty, the mere acceptance of the property will not, as a matter of law, bar a recovery for breach of the warranty, although an inspection of the property would have led to a discovery of the breach. Nor will actual knowledge of the defective condition of the thing delivered necessarily preclude a reliance upon the warranty. All the facts are to be laid before the jury, to the end that they may determine whether the purchaser relied on the warranty, and whether he has waived his right to take advantage of its breach. Gould v. Stein, 149 Mass. 570; English v. Spokane Commission Co., 48 Fed. R. 196; Lewis v. Roundtree, 78 N. C. 323; Best v. Flint, 58 Vt. 543, 56 Am. R. 570; Polhemus v. Heiman, 45 Cal. 573; Tacoma Coal Co. v. Bradley, 2 Wash. 600, 26 Am. St. R. 890; Hege v. Newsom, 96 Ind. 426; English v. Spokane Commission Co., 57 Fed. R. 451; 2 Benjamin on Sales (6th Am. ed.), 856, note 29; Dayton v. Hooglund, 39 Ohio St. 671; Holloway v. Jacoby, 120 Pa. St. 583. 6 Am. St. R. 737; Parks v. Morris, etc. Tool Co., 54 N. Y. 586; Zabriskie v. Central, etc. R. R. Co., 131 N. Y. 72; Morse v. Moore, 83 Me. 473, 23 Am. St. R. 783; Fairbank Canning Co. v. Metzger, 118 N. Y. 260, 16 Am. St. R. 753.”

1 Morse v. Moore (1891), 83 Me. 473, 22 Atl. R. 362, 23 Am. St. R. 783, 13 L. R. A. 224, is a recent case declaring this view. There was here a sale of ice by description and specification which might easily have been held to be an express warranty, but the

court said that it was "immaterial for present purposes whether it be regarded as an express warranty, or an express condition implying warranty." though they finally declared it to be express. The defect was open to observation and the buyer most vigorously protested, though he received and stored the ice, and subsequently sold it on the best terms he could obtain. The seller brought an action for the price, and the defense was breach of warranty. The jury found that the buyer had accepted the ice, and the court below held that, the contract being executory, the defense of breach of warranty could not be made after acceptance. The supreme court reversed the judgment, holding that whether the case was deemed to be on condition or warranty, the same right to rely upon the warranty attached to the executory as to the executed sale. Acceptance, the court said, was not necessarily a waiver; the circumstances must be inquired into, and whether in view of them the defects were waived was a question for the jury. "It might be ruinous to a vendee, who is in urgent need of an article, not to accept it, although even much inferior in quality to the description contained in the contract. Certainly, it should not be considered a hardship to a seller to require of him a compliance with his contract, or damages for his noncompliance."

court treated the description as importing an implied warranty or condition. The buyer discovered the alleged defect in the cattle when they were delivered; but he had paid for them in advance and needed them badly; he therefore protested against the quality, but kept the cattle and sued for breach of implied warranty, and was held entitled to recover. The question of the effect of the acceptance was but briefly considered, though it was held that keeping them after protest was not such acceptance as waived the benefits of the warranty.

Tacoma Coal Co. v. Bradley (1891), 2 Wash. 600, 27 Pac. R. 454, 26 Am. St. R. 890, also resembles Morse v. Moore, supra, in many respects. Here an order was given for fire-brick manufactured by the seller, who knew the purpose to which the buyer expected to put them. There was also correspondence upon which a claim of express warranty could be based so that the buyer's demand might be placed on either ground. There was some dispute whether the defects were discoverable by inspection; but the court said, "be that as it may, we are of the opinion that the appellant [the buyer] had a right to assume that the brick were of the quality ordered, and to act accordingly, and that appellant violated no duty it owed respondent in failing to search for imperfections before using them." "It is undoubtedly true," said the court, "that if the brick were defective, and appellant was silent, and did not give notice or offer to return them within a rea

Morse v. Union Stock Yards (1891), 21 Oreg. 289, 28 Pac. R. 2, 14 L. R. A. 157, resembles Morse v. Moore, supra, in its essential features, though the

sonable time after discovering defects, the right to rescind the sale was thereby waived. But the right to recover damages on account of defective quality was in no wise affected. Benjamin on Sales (Bennett's notes, 1888), sec. 901. It is also true that in such cases a failure to give notice or to offer to return the goods would have an important bearing upon the question of warranty, and would raise a strong presumption that the goods received were of satisfactory quality. Babcock v. Trice, 18 Ill. 420, 68 Am. Dec. 560; Abbott's Trial Evidence, 348. That the vendee may retain the goods without notice and plead breach of warranty, in an action by the vendor for the purchase price, is shown by numerous authorities. Dayton v. Hooglund, 39 Ohio St. 671; Polhemus v. Heiman, 45 Cal. 573; Holloway v. Jacoby, 120 Pa. St. 583, 15 Atl. R. 487, 6 Am. St. R. 737; Benjamin on Sales, sec. 903, p. 867, and cases cited; Babcock v. Trice, 18 Ill. 420, 68 Am. Dec. 560; Bagley v. Cleveland Rolling Mill Co., 21 Fed. R. 159."

In Graff v. Osborne (1895), 56 Kan. 162, 42 Pac. R. 704, defendant bought binding twine from the plaintiff, relying on a letter from the latter, with the representation: "We deal in nothing but first-class twine." The twine was not equal to the representation. Held, that defendant could elect to rescind the contract and return the goods, or could keep the inferior goods delivered and recoup in damages.

The rule that the implied warranty survives acceptance is strongly enforced in Illinois. Thus in Babcock v. Trice, 18 Ill. 420, 68 Am. Dec. 560, which was a sale of corn with an implied warranty of merchantability, it was held that while an acceptance of the corn, with an opportunity for inspection at the time of delivery, without complaint, might raise a presumption that it was of the proper quality, the presumption was not conclusive and would not preclude the buyer from relying on the warranty. See also Crabtree v. Kile, 21 Ill. 180; Strawn v. Cogswell, 28 Ill. 457; Mears v. Nichols, 41 Ill. 207, 89 Am. Dec. 381; Peck v. Brewer, 48 Ill. 54; Doane v. Dunham, 65 Ill. 512, 79 Ill. 131; Estep v. Fenton, 66 Ill. 467; Owens v. Sturges, 67 Ill. 366; Prairie Farmer Co. v. Taylor, 69 Ill. 440, 18 Am. R. 621.

The late case of Underwood v. Wolf (1890), 131 Ill. 425, 23 N. E. R. 598, 19 Am. St. R. 40, was a case of express warranty, but the language of the court extends to implied warranties as well, the court saying that it was "unnecessary to discuss any nice distinctions between warranties on the one side, and conditions precedent or descriptions of the property on the other."

So also in Pennsylvania. Borrekins v. Bevan (1831), 3 Rawle, 23, 23 Am. Dec. 85; Holloway v. Jacoby (1888), 120 Pa. St. 583, 15 Atl. R. 487, 6 Am. St. R. 737.

English v. Spokane Commission Co. (1893), 15 U. S. App. 218, 6 C. C. A. 416, 57 Fed. R. 451, is also an important