dition; and it is well settled where an express warranty accom. panied the contract, that while, by accepting the goods, the buyer may lose his right to subsequently reject them, he does not thereby necessarily lose his right to rely upon the warranty. The express warranty survives acceptance, and, by the great weight of authority, gives the buyer a remedy notwithstanding the defects were visible or open to discovery at the time they were received. The buyer may reject them, but he is not compelled to do so; he may retain them and rely upon the warranty.1 1 Zabriskie v. Central Vermont R. R. Co., 131 N. Y. 72, 29 N. E. R. 1006, [citing Kent v. Friedman, 101 N. Y. 616, 3 N. E. R. 905; Brigg v. Hilton, 99 N. Y. 517, 3 N. E. R. 51, 52 Am. R. 63; Gurney v. Atlantic & G. W. R. Co., 58 N. Y. 358, and distinguishing Coplay Iron Co. v. Pope, 108 N. Y. 232, 15 N. E. R. 335; Studer v. Bleistein, 115 N. Y. 316. 22 N. E. R. 243, 5 L. R. A. 702; Pierson v. Crooks, 115 N. Y. 539, 22 N. E. R. 349, 12 Am. St. R. 831]; Fairbank Canning Co. v. Metzger, 118 N. Y. 260, 23 N. E. R. 372, 16 Am. St. R. 753; Day v. Pool, 52 N. Y. 416, 11 Am. R. 719; Parks v. Tool Co., 54 N. Y. 586; Dounce v. Dow, 57 N. Y. 16; Iroquois F. Co. v. Wilkins Mfg. Co. (1899), 181 Ill. 582, 54 N. E. R. 987; Underwood v. Wolf, 131 Ill. 425, 23 N. E. R. 598, 19 Am. St. R. 40; Babcock v. Trice, 18 Ill. 420, 68 Am. Dec. 560 (see also other Illinois cases in preceding section); Morse v. Moore, 83 Me. 473, 22 Atl. R. 362, 23 Am. St. R. 783, 13 L. R. A. 224; Laporte Implement Co. v. Brock (1896), 99 Iowa, 485, 68 N. W. R. 810; Jackson v. Mott, 76 Iowa, 263, 41 N. W. R. 12; Tacoma Coal Co. v. Bradley, 2 Wash. 600, 27 Pac. R. 454, 26 Am. St. R. 890; Rubin v. Sturtevant (1897), 51 U. S. App. 286, 26 C. C. A. 259, 80 Fed. R. 930; English v. Spokane Commission Co., 15 U. S. App. 218, 48 Fed. R. 196, 57 Fed. R. 451, 6 C. C. A. 416; Central Trust Co. v. Arctic Ice Mach. Co., 77 Md. 202, 26 Atl. R. 493; Holloway v. Jacoby, 120 Pa. St. 583, 15 Atl. R. 487, 6 Am. St. R. 737; Cox v. Long, 69 N. C. 7; Lewis v. Rountree, 78 N. C. 323; Best v. Flint, 58 Vt. 543, 5 Atl. R. 192; Shupe v. Collender, 56 Conn. 489, 15 Atl. R. 405; Eagan Co. v. Johnson, 82 Ala. 233, 2 S. R. 302; Riddle v. Webb (1895), 110 Ala. 599, 18 S. R. 323; Dayton v. Hooglund, 39 Ohio St. 671. The distinction as drawn in New York-in respect of which many courts differ, as has been seen in the preceding section, upon the first point, but with which most courts agree as to the second branch-is stated thus in Fairbank Canning Co. v. Metzger, supra: "It is undoubtedly the rule that in cases of executory contracts for the sale and delivery of personal property, if the article furnished fails to conform to the agreement, the vendee's right to recover damages does not survive an acceptance of the property, after opportunity to ascertain the defect, unless notice has been given to the vendor, or the vendee offers to return the property. Reed v. Randall, 29 The single exception to this rule is that of the conditional warranty referred to in the following section. § 1396. Effect of acceptance - Where contract provides that it shall be conclusive.-While thus, in general, acceptance and retention of the goods are not necessarily conclusive against N. Y. 358, 86 Am. Dec. 305; Beck v. Sheldon, 48 N. Y. 365; Coplay Iron Co. v. Pope, 108 N. Y. 232, 15 N. E. R. 335. But when there is an express warranty, it is unimportant whether the sale be regarded as executory or in præsenti, for it is now well settled that the same rights and remedies at tach to an express warranty in an executory as in a present sale. Day v. Pool, 52 N. Y. 416, 11 Am. R. 719; Parks v. Morris Ax and Tool Co., 54 N. Y. 586, Dounce v. Dow, 57 N. Y. 16; Brigg v. Hilton, 99 N. Y. 517, 52 Am. R. 63, 3 N. E. R. 51. In such cases the right to recover damages for the breach of the warranty survives an accept ance, the vendee being under no obligation to return the goods." And in Zabriskie v. Central Vermont R. Co., 131 N. Y. 72, 29 N. E. R. 1006, it is said: "Upon an executory sale of goods by sample, with warranty that the goods shall correspond with the sample, the vendee is not precluded from claiming and recovering damages for breach of warranty, although he has accepted the goods after an opportunity for inspection," citing and distinguishing the cases first mentioned in this note. receipt. He then brought an action for damages on the warranty, and was held entitled to recover. But the keeping and using of a warranted article has been held to be evidence that the claim of defects was unfounded. Thus, in Hodge v. Tufts (1896), 115 Ala. 366, 22 S. R. 422, plaintiff sold a soda fountain to defendant with a warranty. Defendant, in an action for the price, claimed that it was defective, though he kept the fountain and used it for three or more months after becoming aware of the alleged defects, and paid his notes given for the purchase-money until seven or eight months after the sale. Held, that his keeping and using the fountain was evidence that the claim of defects was unfounded, and the payment of the notes was a waiver of the right to rescind. In Minnesota Thresher Mfg. Co. v. Hanson (1892), 3 N. Dak. 81, 54 N. W. R. 311, the court say: "The retention and use of the property, without notice [to the seller] of defects, under the great preponderance of the laterand, as we think, better-authorities, affects only the right to rescind. The buyer may still rely upon the breach of warranty to defeat a recovery, in whole or in part, in an action brought by the seller to recover the purchase price. Continued use of the property, with knowledge of defects, and without notice or complaint to the seller, may be more or less persuasive as evidence of In Holloway v. Jacoby, 120 Pa. St. 583, 15 Atl. R. 487, 6 Am. St. R. 737, the buyer had paid for the goods (corn) in advance; on receipt he found it defective; he kept it and sold it on the best terms he could, giving no notice to the seller until after the sale, and two months after the buyer's right to rely upon the warranty, the parties may, by the express terms of their agreement, make it so conclusive. This is frequently the result in the case of the contracts already referred to for the sale of implements and machinery,' the case of the so-called conditional warranty; and the rule is well settled that, where the contract so provides,2 a retention of the property without complaint or a failure to give the stipulated waiver of defects, but cannot establish such waiver as matter of law. See, generally, Kellogg v. Denslow, 14 Conn. 411; Aultman v. Thierer, 34 Iowa, 272; Muller v. Eno, 14 N. Y. 597; Kent v. Friedman, 101 N. Y. 616, 3 N. E. R. 905; Vincent v. Leland, 100 Mass. 432; Taylor v. Cole, 111 Mass. 363; Warder v. Fisher, 48 Wis. 338, 4 N. W. R. 470; Ferguson v. Hosier, 58 Ind. 438; Pennock v. Stygles, 54 Vt. 226; Smith v. Mayer, 3 Colo. 207." In Wisconsin, however, the distinction between patent and latent defects is adhered to. Buffalo Barb Wire Co. v. Phillips, 67 Wis. 129, 30 N. W. R. 295; Locke v. Williamson, 40 Wis. 377; Morehouse v. Comstock, 42 Wis. 626; McClure v. Jefferson, 85 Wis. 208, 54 N. W. R. 777. But see Larson v. Aultman, 86 Wis. 281, 56 N. W. R. 915; Park v. Richardson, 81 Wis. 399, 51 N. W. R. 572. 1 See ante, § 822. defective, due notice must be given to us or our agent, and time allowed to send a person to put it in order. If it does not work after this, and the fault is in the machine, it will be taken back or that part of it which proves defective and will be replaced, or the money paid for it refunded." Many substantially similar forms are found in the older cases. See Bomberger v. Griener, 18 Iowa, 477. The warranty in Osborne v. Baker, 103 Mich. 247, 61 N. W. R. 509, is fairly typical as to the point in question of the later forms: "The machine is hereby purchased and sold subject to the following warranty and agreement, and no one has any authority to add to or change in any manner: All our machines are warranted to be well built, of good material, and capable of cutting, if properly managed, from ten to fifteen acres per day. If, on starting a machine, it should in any way prove defective, and not work well, the purchaser shall give prompt notice to the agent of whom he purchased it, and allow time for a person to be sent to put it in order. If it cannot then be made to do good work, the defective part will be replaced, or the machine received back from the purchaser at the office of the agent from whom it was purchased, and the money or notes returned. Keeping the machine during harvest, 2 The difference between the older and later forms of contract may be made clear by illustration. The contract in Aultman v. Theirer, 34 Iowa, 272, is fairly typical of the first form: “The Buckeye reaper and mower is warranted to cut, if properly managed, one acre per hour, or ten or twelve acres per day, either grain or grass, in a workmanlike manner, with one pair of horses. The purchaser is allowed to cut two acres of grass and also two acres of grain on trial, and, in case anything proves notice of defects to the seller will, unless waived,1 be deemed conclusive evidence that the warranty is satisfied.2 § 1397. Effect of acceptance when brought about by fraud, mistake or promise to remedy. It needs no authority to establish that an acceptance brought about by the seller's fraud cannot estop the buyer; nor that an acceptance given by the purchaser under a mistake of fact may in many cases be open to relief. So it is clear that an acceptance given provisionally upon the seller's promise to rectify defects cannot deprive the buyer of his remedy if the seller's promise is not performed." § 1398. Effect of acceptance or rejection in part.- Where the contract is entire, even though it be one for several lots or articles, the vendee is not obliged to accept a portion only; they were passed upon as sound by a veterinary surgeon whom he employed to examine them. The plaint whether kept in use or not, shall be deemed conclusive evidence that the machine fills the warranty." As to which, see ante, §§ 1385, iff, who sold the horses, bribed the 1386. 2 Kingman v. Watson (1897), 97 Wis. 596, 73 N. W. R. 438; Beasley v. Huyett & Smith Mfg. Co., 92 Ga. 273, 18 S. E. R. 420; Aultman v. McKinney (Tex. Civ. App.), 26 S. W. R. 267. In Minn. Thresher Co. v. Lincoln (1894), 4 N. Dak. 410, 61 N. W. R. 145, a thresher was sold with the usual warranty, to be given a fair trial for two days and any defective parts returned. Use beyond that time was to be conclusive evidence that the machine satisfied the warranty. The machine wasted grain, and the vendor was notified, but his mechanics failed to remedy the defect. Nevertheless the vendee continued to use the machine throughout the season. Held, that he waived any claim arising on a breach of the warranty. 3 See Dutchess Co. v. Harding, 49 N. Y. 321. In Shipway v. Broadwood (1899), 1 Q. B. 369, the defendant agreed to purchase a pair of horses if surgeon to certify them as sound. Held, that the plaintiff could not recover on the contract, which depended on the validity of the certificate. 4 See ante, §§ 265, 840. 5 Osborne v. Carpenter, 37 Minn. 331, 34 N. W. R. 163; Fitzpatrick v. Osborne (1892), 50 Minn. 261, 52 N. W. R. 861. 6"The entirety of the contract is not destroyed by the circumstance that the subject of the sale is of such uniform character as to be readily divisible proportionally, by weight or measure, or is contained in packages of uniform quantity and value, even with the added circumstance that the consideration is named only by way of affixing the rate or price of the unit of such division. Clark v. Baker, 5 Metc. 452; Morse v. Brackett, 98 Mass. 205." Mansfield v. Trigg, 113 Mass. 350. "But a contract, made at the same time, of different articles, he may insist upon having all or none. He has, however, usu ally no right to accept a part only and to reject the residue as not conforming to the contract. He must accept or reject in toto, and, if he sees fit to reject, he must put the seller in statu quo.1 Where, however, the contract is severable, the rule is otherwise. In such a case he may accept or reject different parcels according to their conformity.2 3 Even if the contract would not ordinarily be deemed severable, the parties may by their conduct so treat it as to show that they regarded it as severable in fact. And where the delivery is to be in instalments, the fact that the buyer has accepted one instalment will not preclude him from refusing to accept a second instalment which in fact does not conform to the contract.1 at different prices, is not an entire contract, unless the taking of the whole is essential from the character of the property, or is made so by the agreement of the parties, or unless it is of such a nature that a failure to obtain a part of the articles would materially affect the objects of the contract, and thus have influenced the sale, had such failure been anticipated." Norris v. Harris (1860), 15 Cal. 226. 1 Rubin v. Sturtevant (1897), 51 U. S. App. 286, 26 C. C. A. 259, 80 Fed. R. 930; Clark v. Baker (1845), 5 Metc. (Mass.) 452, 11 Metc. 186, 45 Am. Dec. 199; Morse v. Brackett (1867), 98 Mass. 205; Mansfield v. Trigg (1873), 113 Mass. 350; Cahen v. Platt (1877), 69 N. Y. 348, 25 Am. R. 203; Pierson v. Crooks (1889), 115 N. Y. 539, 22 N. E. R. 349, 12 Am. St. R. 831. Usage, however, may justify it. Clark v. Baker, 11 Metc. 186, supra. contract may “be broken by the concurrent act of both parties, and when the [seller] delivered and the [buyer] accepted and paid for a portion of the [goods] without anything being said about the remainder, the parties by their conduct gave an implied assent to the severance of the contract to that extent at least." To like effect: Mansfield v. Trigg, supra. 4 Hubbard v. George (1868), 49 Ill. 275; Cahen v. Platt, supra. In Russell & Co. v. Lilienthal,supra, defendant contracted with plaintiff to purchase certain lots of hops, represented by samples, which were to be accepted by a certain date and delivered at once, with the exception of one lot which could not be delivered till later. All the lots but the one excepted were accepted and paid for, but when this last lot was inspected it was seen to be inferior to the sample and was rejected. Held, 2 Potsdamer v. Kruse (1894), 57 that defendant was not bound to acMinn. 193, 58 N. W. R. 983. cept any lot that did not conform to sample, and he was at liberty to reject the lot he did without offering to return those already received. 3 Russell & Co. v. Lilienthal (1899), 36 Oreg. 105, 58 Pac. R. 890, where the court say that the entirety of the |