to other qualities, which were silent on this particular subject: Wilcox v. Owens, 64 Ga. 601; Merriam v. Field, 24 Wis. 640.

But in a recent case, in the Supreme Court of the United States, it was held that an express warranty of quality, excludes any implied warranty of merchantibility, especially if accompanied by the delivery and acceptance of a sample as such: DeWitt v. Berry, 134 U. S. 306; Cosgrove v. Bennett, 32 Minn. 371.

(2) Where the buyer, relying on the seller's skill or judgment, orders goods for a particular purpose, known to the seller, which is in the course of seller's business to supply, there is an implied warranty that the goods shall be fit for such purpose: Chalmer's Digest, § 17; Randall v. Newson, 2 Q. B. Div. 102; Hoe v. Sanborn, 21 N. Y. 552; Rodgers v. Niles, 11 Ohio, 48.

In purchases for a particular use made known to the seller, if the buyer relies on the vendor's judgment to select, and not on his own, there is an implied warranty that the article furnished is reasonably fit and suitable for that purpose: Morse v.. Union Stock Yard Co., 21 Ore. 289.

This is more obvious when the seller is also the manufacturer, but it is equally true when he is only a merchant; provided always, that the buyer in fact relies upon the seller's judgment, and does not inspect for himself: Dushane v. Benedict, 120 U. S. 630.

As example, a sale of barrels to be filled with whiskey, implies that they will not leak: Poland v. Miller, 95 Ind. 387; Pacific Iron Works v. Newhell, 34 Conn. 67; Howard v. Hoey, 33 Wend. 350; Rease v. Sabin, 38 Vt. 432; Byers v. Chapin, 28 Ohio, 300.

It must be distinctly borne in mind, however, that this implied warranty of fitness does not arise (in the absence of fraud) when the buyer selects his own articles on his own judgment, although the vendor (not being a manufacturer). knows it is intended for a particular purpose. If the purchaser gets the exact article he buys, and buys the very thing he gets, he takes the risk of fitness for the intended use: Deming v. Foster, 48 N. H. 165; Height v. Bacon, 126 Mass..

10; Walker v. Puc, 57 Md. 155; Armstrong v. Bufford, 51 Ala. 410; Port Carbon Iron Co. v. Groves, 68 Pa. 149.

(3) In a sale by a manufacturer there is an implied warranty that the goods are of the seller's own manufacture: Chalmer's Digest, § 17; Johnson v. Raylton, 7 Q. B. Div. 438.

(4) In addition to all other implied warranties, it is possible that custom and usage, if sufficiently well established, may modify, enlarge, or restrict warranties usually created by law. Thus, in Schnitzner v. Oriental Print Works, 144 Mass. 123, it was held that, in a sale of Persian berries in bags by sample, a custom might be shown that the sample represented only the average quality of the entire lot, and not the average quality of the contents of each bag taken separately; if so, the buyer would have no remedy merely because the average of one bag fell below the sample, if in fact the average of the entire quantity, taken as whole, did conform to the standard. But a usage that in sales by sample there is an implied warranty against latent defects is invalid and illegal: Dickinson v. Gay, 7 Allen, 29; Coxe v. Heisley, 19 Pa. 243.

So a usage that plain words of representation, merely in their ordinary sense, shall be understood as words of warranty is invalid: Weatherill v. Nileson, 20 Pa. 448.

Conversely, a usage derogating from the common law rule of implied warranties is invalid; as a usage that a manufacturer does not impliedly warrant against latent defects in the article he is manufacturing is inoperative against a written contract from which the law would imply such warranty: Whitmore v. South Boston Iron Co., 2 Allen, 52.

Remedies:

A right of action for breach of warranty exists, although the vendor had expressly agreed to take back the property in case it did not correspond with the warranty. The right to return is merely accumulative remedy: Douglass Axc Co. v. Gardner, 10 Cush. 88; Perrine v. Serrell, 30 N. J. Law, 454; McCormack v. Dunville, 36 Iowa, 645. Unless the buyer expressly agrees that the thing shall be returned if defective, in which case he may not have a right to keep it and suc on the warranty: Bomberger v. Griener, 18 Iowa, 477. And,

although the buyer has exercised his right of return, an action for breach of warranty will lie for any actual damages thereby sustained before such return: Clark v. McGatchie,

437; Kimball v. Vorman, 35 Mich. 310.

49 Iowa,

The mere fact of acceptance and use of the goods, even after knowledge of the defect, does not prevent a resort to an action upon a warranty, or for fraud. The buyer need not return them, nor offer to do so, nor give any notice, in order to sue upon his warranty: W'arcing v. Mason, 18 Wend. 426; Vincent v. Leland, 100 Mass. 432; Fisk v. Tank, 12 Wis. 277; Hughes v. Bray, 60 Minn. 284; Kellogg v. Denslow, 14 Conn.

411.

No doubt a failure to return the goods or notify the vendor of the defect after sufficient opportunity to examine them, may be some evidence that no defect existed, but it is not a condition precedent to the action, nor in law, a waiver of the warranty, though some states seem to hold it so, especially in executory contracts, and when the defects are apparent: Dounce v. Dow, 64 N. Y. 411; Defenbaugh v. Weaver, 87 III. 132. But it seems to be a question of fact for the jury in each case, under proper instructions from the court.

An action for a breach of warranty may be maintained although the goods are not paid for, or though notes for the price are still outstanding: Aultman v. Wheeler, 49 Iowa, 647 ; Frohreick v. Gammon, 28 Minn. 476; Creighton v. Comstock, 27 Ohio, 548. Or, although the buyer has sold the goods and no claim has been made on him for the alleged defects: Muller v. Eno, 14 N. Y. 598.

An action may legally be sustained upon a warranty, although the buyer allows the seller to recover judgment for the full price because he did not set up the defence. The failure to rely upon the defect is only a matter of evidence as to the nonexistence of such defence: Bodurtha v. Phelon, 13 Gray, 413. and vice versa: Barker v. Cleveland, 19 Mich. 230. But no action will lie on a warranty unless the title has fully passed to the buyer.

The general rule of damages in actions upon a warranty is too well settled to require citation, viz: the value of an article

corresponding to the warranty, minus the value of the article actually received. And this seems to be so both in express and implied warranties: Cohers v. Keever, 4 Pa. 168; Comstock v. Hutchinson, 10 Barb. 211; Rutan v. Ludlam, 29 N. J. Law, 398.

And it is immaterial that the purchaser subsequently sold the article for a higher price than he paid : Brown v. Bigelow, 10 Allen, 242.

As to special or consequential damages not quite so much unanimity exists: See Thoms v. Dingsley, 70 Me. 100. In that case the expense of taking out defective carriage springs and inserting others in their place was allowed.

In a sale of seeds to a market gardener, known to be for his own use, that being considered an implied warranty of fitness for that special use, the buyer may recover as damages the difference between the value of the crop raised from the seed and the value of what a crop would have been raised from such seed as they were warranted to be: Woolcott v. Mount, 36 N. J. Law, 262; White v. Miller, 71 N. Y. 118; Van Wyck v. Allen, 69 N. Y. 61.

Gains prevented, as well as losses sustained, may be sometimes recovered if they can be clearly established by the evidence as natural results of the breach of warranty. Griffin v. Colver, 16 N. Y. 489; Messmore v. N. Y. Steel and Lead Co., 40 N. Y. 422. EDGAR H. ROSENSTOCK.

CORNELL, 1894.

The defendant agreed by ante-nuptial written promise to leave a certain house and land, by will, to the plaintiff for life, if she would marry him. The marriage took place but sometime afterward he conveyed the property to third parties.

In an action for damages for breach of contract the court held that the conveyance by the husband was a breach of contract for which the wife had an immediate right of action and could recover damages.

CONTRACTS TO MAKE WILLS.

The law is in a somewhat unsettled state with regard to joint and mutual wills and contracts to make wills. The point most difficult to overcome is the irrevocable quality of such instruments, for one of the chief features of a will is its ambulatory character.

The case of Dufour v. Pereira, 1 Dick. 419, decided in 1769, is one of the oldest cases on this subject and one of those most frequently cited as establishing the validity of mutual wills. Husband and wife had made a mutual will, and on the death of the husband it was proved as his will, the wife taking the benefits it conferred on her. Before her death she made another will which if carried into effect would revoke the mutual will. The question to be decided was whether her second will should be admitted to probate or declared void.

The court decided that the wife could not revoke the mutual

1 Reported in 1 Q. B. 466 (1894).