such a statute is invalid as a regulation of inter-State commerce. In support of this it is asserted that the exclusive right to regulate inter-State commerce is expressly confided by the Constitution of the United States to Congress by article 1, section 8, which declares, that "the Congress shall have power * * * to regulate commerce with foreign nations, and among the several States, and with the Indian tribes."

The Federal courts have established that the transportation of merchandise from place to place by railroad is commerce; that the transportation of mer chandise from a place in one State to a place in another is commerce among the States, or inter-State commerce; that to fix or limit the charges for such transportation is to regulate commerce; that a statute fixing or limiting such charges for transportation from places in one State to places in another is a regulation of commerce among the States; that the power to regulate such commerce is vested by the Constitution of the United States in Congress. Keiser v. Ill. Cent. R. Co., 16 Am. & Eng. R. Cas. 40; Louisville & N. R. Co. v. Railroad Com. of Tenn., id. 1: Carton v. Ill. Cent. R. Co., 59 Iowa, 148; 6 Am.& Eng. Cas.317, and the authorities there cited.

The debatable question is, how far this power is concurrent. May a State act until its legislation is superseded or interfered with by Congress? In other words, may Kansas control or regulate, within its limits, the charges for transportation of goods shipped from another State, under a contract made in that State, to a place in this State? We suppose it will be conceded that Kansas can pass no law which seeks to fix or limit the charges for the carriage of goods over the lines of its railroads which pass over its territory, but neither originate nor terminate within it, as for instance, goods passing from Missouri to Colorado, Texas or New Mexico. We suppose it will be conceded also that it is beyond the power of Kansas to fix the whole charge for the carriage of goods from a point in the State to a point in another. This would be an attempt to give our laws an extra-territorial force. If however the power of Congress to regulate commerce among the States-inter-State commercewhich consists, among other things, in the carriage of persons and the transportation of goods from one State to another, is exclusive, then section 57 could not fix or limit the charges in controversy. This question is one upon which the decisions of the Supreme Court of the United States are final. We shall therefore refer to the more important of those adjudications.

In Crandall v. State of Nevada,6 Wall. 35,a statute of Nevada, which in effect laid a tax upon every traveller passing through or beyond its territorial limits, was adjudged to be invalid, but not on the ground that it was a regulation of inter-State commerce. Chief Justice Chase and Mr. Justice Clifford dissented from this conclusion, and pronounced the act to be a regulation of inter-State commerce exclusively within the jurisdiction of Congress.

In the case of the State Freight Tax, 15 Wall. 232, a statute of Pennsylvania, which in effect, laid a tax upon all freight taken up within the State and carried out of it, or taken up without and brought within it by any railway, was adjudged to be void. The decision was placed solely upon the ground that the law was a regulation of commerce among the States and was invalid, although Congress had never legislated in reference to the same subject-matter. Mr. Justice Strong, in delivering the opinion, said: "The tax upon freight transported from State to State is a regulation of inter-State transportation, and therefore a regulation of commerce among the States. It is a rule prescribed for the transporter by which he is to be controlled in bringing the subjects of commerce into

a State and in taking them out. * * * If then this is the tax upon freight carried between States and a tax, because of its transportation, and if such tax is in effect a regulation of inter-State commerce, the conclusion seems to be inevitable that it is in conflict with the Constitution of the United State. It is not necessary to the present case to go at large into the much debated question, whether the power given to Congress by the Constitution to regulate commerce among the States is exclusive. In the earlier decisions of this court, it was stated to have been so entirely vested in Congress that no part of it can be exercised by a State. It has no doubt often been argued and sometimes intimated by the court that so far as Congress had not legislated on the subject, the States may legislate respecting inter-State commerce; yet if they can, why may they not add regulations to commerce with foreign nations beyond those made by Congress,if not inconsistent with them? For the power over both foreign and inter-State commerce is conferred upon the Federal Legislature by the same words, and certainly it has never yet been decided by this court that the power to regulate inter-State, as well as foreign commerce, is not exclusively in Congress. * * * Inter-State transportation of passengers is beyond the reach of a State Legislature. *** Merchandise is a subject of commerce; transportation is essential to commerce; and every burden laid upon it is, pro tanto, a restriction. Whatever therefore may be the true doctrine respecting the exclusiveness of the power vested in Congress to regulate commerce among the States, we regard it as established that no State can impose a tax upon freight transported from State to State, or upon the transporter because of such transportation."

In Welton v. State of Missouri, 91 U. S. 275, Mr. Justice Field said: "It will not be denied that that portion of commerce with foreign countries and between the States which consists in the transportation and exchange of commodities is of national importance and admits and requires uniformity of regulation. The very object of investing this power in the general government was to insure this uniformity against discriminating State legislation. * * * The fact that Congress has not seen fit to prescribe any specific rules to govern inter-State commerce does not affect the question. Its inaction on this subject, when considered with reference to its legislation with respect to foreign commerce, is equivalent to a declaration that inter-State commerce shall be free and untrammeled."

In Railroad Co. v. Husen, 95 U. S. 465, Mr. Justice Strong said: "Whatever may be the power of a State over commerce that is completely internal, it can no more prohibit or regulate that which is inter-State than that which is with foreign nations. Power over one is given by the Constitution of the United States to Congress in the same words in which it is given over the other, and in both cases it is necessarily ex. clusive. That the transportation of property from one State to another is a branch of inter-State commerce is undeniable, and no attempt has been made in this case to deny it. * * * This court has heretofore stated that inter-State transportation of pas sengers is beyond the reach of a State Legislature, and if as we have held State taxation of persons passing from one State to another, or a State tax upon inter State transportation of passengers is prohibited by the Constitution because a burden upon it, a fortiori, if possible is a State tax upon the carriage of merchan dise from State to State. Transportation is essential to commerce, or rather it is commerce itself, and every obstacle to it, or burden laid upon it by legislative authority, is regulation."

In Hall v. DeCuir, 95 U, S. 485, Chief Justice Waite

said: "We think it may safely be said that State legislation which seeks to impose a direct burden upon inter-State commerce, or to interfere directly with its freedom, does encroach upon the exclusive power of Congress. * * *If each State was at liberty to regulate the conduct of carriers while within its jurisdiction, the confusion likely to follow could not but be productive of great inconvenience and unnecessary hardship. Each State could provide for its own passengers and regulate the transportation of its own freight, regardless of the interest of others. Nay more, it could prescribe rules by which a carrier must be governed within the State in respect to passengers and property brought from without. On one side of the river or its tributaries he might be required to observe one set of rules, and on the other another. Commerce cannot flourish in the midst of such embarrassments."

In Telegraph Co. v. Texas, 105 U. S. 460, Chief Justice Waite said: "A telegraph company occupies the same relation to commerce as a carrier of messages that a railroad company does as a carrier of goods. Both companies are instruments of commerce and their business is commerce itself. * **A specific tax on each message, so far as it operates on private messages sent out of the State, is a regulation of foreign and inter-State commerce and beyond the power of the State."

In Steamship Co. v. Board of Railroad Commissioners, 18 Fed. Rep. 10, Mr. Justice Field said: "It was at one time a subject of much discussion and some disagreement among judges whether the power conferred upon Congress to regulate commerce is exclusive in its character, or concurrent with that of the States. By recent decisions, this question has been put at rest. When the subject upon which Congress can act under this power is national in its character and admits and requires uniformity of regulation affecting alike all the States, then the power is in its nature exclusive; but when the subject upon which the power is to act is local in its operation, then the power of the State is so far concurrent that its action is permissible until Congress interferes and takes control of the subject. Of the former class is all that portion of commerce with foreign countries and among the States, which consists in the carriage of persons and the transportation, purchase, sale and exchange of commodities. From necessity there can be but one rule in such cases for all the States, and the only power competent to prescribe a uniform rule is one which can act for the whole country. Its inaction in such cases is therefore an equivalent to a declaration that such commerce shall be free from State interference." See also Pullman Southern Car Co. v. Nolan, C. L. J., Vol. 19, 369; Gibbons v. Ogden, 9 Wheat. 1; The Daniel Ball, 10 Wall. 565; City of Council Bluffs v. Railroad Co., 45 Iowa, 338; Passenger cases,7 How. 283; State of Penn. v. Wheeling Bridge Co., 18 id. 481; Cooley v. Board of Wardens, 12 id. 299; Gilman v. Philadelphia, 3 Wall. 713.

From these authorities and the cases therein cited we think it is conclusively settled that the portion of either inter-State or foreign commerce which consists in transit or traffic, including transportation in all forms, by land or by water, and the purchase, sale, or exchange of goods is national and susceptible of a uniform plan of regulation, and is therefore under the exclusive control of Congress. Even if Congress has not seen fit to prescribe any specific rules to govern inter-State commerce, that does not affect the question. "Its inaction on this subject, when considered with reference to its legislation with respect to foreign commerce, is equivalent to a declaration that inter-State commerce shall be free aud untram

The conclusion we have reached could not be disputed were it not for the case of Peik v. Chicago & N. W. R. Co., 94 U. S. 164, and the language of the court i in State v. Munn, id. 133; and Railroad Co. v. Iowa, id. 155. We confess it is difficult to reconcile these three cases with the principles which have been settled by the prior and subsequent course of decision of the United States Supreme Court, if they decide that until Congress acts in reference to inter-State commerce, the Legislature of a State may regulate the transportation of freight and passengers among the States. These cases were decided in 1876, and the opinion in the Peik case was delivered by Chief Justice Waite; yet in the case of Hall v. DeCuir, supra, decided the next year, 1877, the chief justice quotes ap- 1 provingly what was said by Mr. Justice Field, speak- ¦ ing for the court in Welton v. State of Missouri, 91 U. S. 282, that "inaction (by Congress) * * is equivalent to a declaration that inter-State commerce shall remain free and untrammeled." Referring to those decisions, the Supreme Court of Iowa in Carton v. Rallroad Co., supra, uses the following language: "The cases of State v. Munn, 94 U. S. 113; Railroad Co. v. Iowa, id. 155; and Peik v. C. & N. W. R. Co., id. 164, do not appear to us to sanction the validity of acts of the State Legislature regulating the transportation of freight and passengers between the States. They merely determine the power of the statutes to fix reasonable warehouse charges and reasonable charges for transportation of freight within the boundaries of the States respectively, and that when such power is exercised, although it may incidentally affect commerce between the States, yet the laws of the States are not regulations of inter-State commerce because of such incidental results. That it was not intended in those cases to approve legislation like that under consideration in this case it appears to us is conclusively shown by the reasoning in the latter cases of Hall v. DeCuir, 95 U. S. 485; and Railroad Co. v. Husen, id. 465.”

In the case of L. & N. R. Co. v. R. Com. of Tenn., supra, Hammond, J., in commenting upon the Peik case, says: "In the Wisconsin case, the next in the series of the Granger cases, the court mainly deals again with what were evidently considered by all more important questions. Circuit Judge Drummond tells us that question was scarcely argued at all in the court below, and evidently it was only incidentally considered in the Supreme Court. 6 Biss. 177. The Wisconsin act, unlike ours, contained an exception which excluded from its operation all rates of charges for "carrying freight which comes from beyond the boundaries of the State and to be carried across or through the State." Possibly, notwithstanding its terms, the act may have been construed within the purview of this exception, not to apply to persons and property coming from other States into Wisconsin or going from that into other States, which was not thought however to be its construction in the court below, though the question whether it could so apply under the State Freight Tax cases, 15 Wall. 232, was reserved and not decided in that court."

In the Peik case, the chief justice speaks of the power of Wisconsin to regulate its fares, etc., so far as they are a domestic concern, even though incidentally they may reach beyond the State. Clearly a statute of the State prescribing rates of freight for goods,

1

which shall be binding upon the railroad companies with respect to goods brought from another State, is a regulation of inter-State commerce as much as a law imposing a tax upon such goods. Therefore it cannot be said that such a statute acts incidentally. It acts directly upon a commerce which is inter-State. It does not, like laws imposing a tax upon gross receipts from traffic, affect such commerce indirectly. It assumes to regulate and control it as commerce and has no other object and design. Therefore we cannot say, as was stated in the Peik case, that said section 57, if intended to apply to inter-State commerce, merely incidentally affected such commerce.

We have examined the case of the People v. W., St. L. & P. R. Co., 104 Ill. 476. That portion of the case that is in any way applicable to this is largely based upon the construction given by that court to the three cases cited, and reported in 94 U. S. Rep. For the reasons before stated, we think the Supreme Court of the United States never intended to establish the doctrine as broadly as contended in the Illinois case.

Thus far we have discussed the question presented as though Congress had remained entirely passive upon the subject. Such however is not the fact. In 1866 it passed an act authorizing all railroad companies to transport passengers and freight from State to State, and empowering them to receive and accept compensation therefor. It seems to us that the existence of this statute must be considered in discussing the power of a State to regulate inter-State commerce. See U. S. Stat. at Large, vol. 14, 66; Rev. Stat. of U. S. (2d ed. 1878), p. 1017, § 5258.

If by this statute Congress undertook to legislate upon inter-State commerce, the exceptional decisions of the United States Supreme Court decided in 1876, including the Peik case, do not militate in the slightest degree against the views announced herein. That each railroad company in the case before us issued its own way-bill to and from the connecting point with the defendant, and that each company was liable for the loss and damage occurring on its own road only, does not affect the question of inter-State commerce. From the time the goods began to be moved from St. Louis, Mo., until they were delivered at Hutchinson, in this State, they were the subject of commerce and commerce among the States, and therefore inter-State

commerce.

After a careful consideration of the whole record and the important questions involved, we decide that the plaintiff is not entitled to recover.

The judgment therefore of the District Court must be affirmed.

All the justices concurring.

SALE-WARRANTY-DUTY OF PURCHASER.

UNITED STATES CIRCUIT COURT, N. D. NEW YORK. JULY, 26, 1884.

BAGLEY V. CLEVELAND ROLLING MILL CO.*

A manufacturer of steel having in obedience to several orders from a customer furnished the latter with steel of a certain quality, if upon receipt of a subsequent order from the same customer for the same article he supplies an inferior quality, he is liable upon his undertaking that the steel was of the quality ordered, and such liability is not lessened by the fact that the customer did not avail himself of his opportunity to test the steel before using it.

If there is a warranty of kind and quality, the purchaser has a right to assume the warranty to be true, and therefore he may sell with like warranty, and defend suits for the breach, and recover of the vendor.

*S. C., 21 Fed. Rep. 159.

Charles D. Wright and Francis Kernan, for plaintiffs.

Levi H. Brown and Beach & Cushing, for defendant.

WALLACE, J. If the evidence introduced upon the trial of this case was such that it would have been the duty of the court to set aside a verdict in favor of the defendant as contrary to evidence, if such verdict had been rendered by the jury, then it was the duty of the court to direct a verdict for the plaintiffs. Randall v. B. & O. R. Co., 109 U. S. 478; Griggs v. Houston, 104 id. 553; Herbert v. Butler, 97 id. 319.

The defendant's motion for a new trial presents the question whether the evidence was such as to require the case to be submitted to the jury according to the rule stated. The plaintiffs sued to recover damages arising from a breach of warranty on the part of the defendant. The plaintiffs were manufacturers and sellers of vises at Watertown, N. Y., and the defeudant was a manufacturer of steel at Cleveland, O. In August, 1880, the plaintiffs wrote to defendant, stating that they required steel for facing the jaws of the vises they were manufacturing, and detailing the characteristics which steel should possess for that purpose, and requesting defendant to send them a sample to test. The defendant sent them a sample. It proved unsatisfactory, and plaintiffs wrote defendant again, pointing out the defects, asking for another sample, and stating that they could give considerable and continuing orders if defendants could furnish a satisfactory article. The defendants sent other samples. Subsequently the plaintiffs sent several orders for lots of steel, accompanied with explanatory sugestions to defendant, and defendant sent the lots ordered. The correspondence indicates that it was contemplated by both parties that plaintiffs should experiment with these lots, in order to ascertain whether the defendant could supply them with the required article. October 22, 1880, defendant wrote plaintiffs as follows:

“We have been trying to get a cast of steel out for your work, but are so busy that we can't do any thing in way of experimenting, but will send same as before if desired. If you desire us to send same quality as before please reiterate your order."

October 25th plaintiffs replied to this letter as follows:

"Yours of 22d at hand. Give us same quality as last lot, and send as soon as possible, 500 lbs. x%, 500 lbs. x1, 500 lbs. %x1%."

November 6th plaintiffs wrote defendant again as follows:

"Send us 500 lbs. steel (same quality), x1%. We are in great need of all stock ordered, and if it proves satisfactory on a fair trial hope to give you much larger orders."

Neither of these orders were filled by defendant, owing to defendant's inability to do so, and November 20th defendant wrote plaintiffs explaining the causes of the delay. November 22d plaintiffs wrote defendant, referring to their former orders, and ordering two more lots of 1,000 pounds each. Soon after this all the orders were filled by the defendant, and after they were filled, and prior to March 5, 1881, plaintiffs ordered and defendant sent four or five lots of steel. March 5, 1881, plaintiffs ordered 2,000 pounds, same quality as last ordered," which order was filled by defendant. March 30, 1881, plaintiffs ordered three tons, same quality as last." This order was filled by defendant by a shipment of the quantity, April

ber 22, 1880, and this last order, including the steel sent upon the order of March 5th, proved satisfactory to the plaintiffs, but the steel sent to fill the order of March 30th proved a failure. Its defects were discovered before it was used, and May 13th plaintiff wrote to defendant as follows:

"The steel shipped by you April 30th is a complete failure. You remember we want it for vise jaws, and require it to harden and take a temper when heated and plunged in water. What you have sent before has been good and satisfactory in this respect. We have tested some twenty or thirty pieces, and many took no temper at all, and some would harden in spots and be soft in other parts. We have tried it faithfully in every way, with no better results. Of course we cannot think of using it, as the tempering is the last process almost, after all the work is expended on the vises. We see no other way than for you to duplicate the order with stock that will be right, and we return this lot to you."

May 17th defendant wrote to plaintiffs:

"We have investigated the complaint contained in your letter of the 13th against the steel, and find, that through a misunderstanding here, we did not send the right thing. We have entered a new order and will push it as fast as possible. Meanwhile please return the lot you have to us."

May 21st plaintiffs wrote defendants, stating that they had shipped the lot for return, and saying:

"We trust you will permit no delay in forwarding the duplicate order of proper quality. We are out of stock, and many of our men will be idle until it arrives."

May 24th defendant filled the order. The lot was received by plaintiffs, June 1st, and a large part of it was used for the vises. After it had been used and the vises sold, complaints were made by purchasers, and upon investigation it was ascertained that the vise jaws made from it were too brittle for practical use. Thereupon tests were made of the unused steel, part of the lot in question on hand, and it was found wholly unfit. These tests were made by taking samples of the lot and heating them, and plunging them in water, when by filing and by striking them with a hammer, it was found they had not tempered, but were brittle. Thereupon plaintiffs promptly gave notice to the defendant, and sent to the defendant samples of the steel to test. After a long delay defendant's agent wrote to plaintiffs stating that he was satisfied that defendant could not make steel of the kind required for the plaintiff's purposes.

The damages sustained by plaintiffs in the cost of labor and the waste of material employed in the defective vises, together with interest from the commencement of the suit, were $3,000.

The court ruled, as matter of law, that there was an agreement on the part of defendant that the steel should be of the same quality as the lots that defendant sent to the plaintiffs between November 22, 1880, and the lot sent upon their order of March 30th; that there was a breach of this agreement; that the plaintiffs owed no duty to defendant to test the steel before using it; and that there was no evidence to authorize the jury to find that the plaintiffs or those in their employ discovered the steel to be defective before the vises were finished. If these rulings were correct the motion for a new trial should be denied.

There was no conflict of testimony respecting the warranty. The plaintiffs' letter to defendant of March 5, 1881, requested the defendant to send steel of "the same quality as last ordered." The defendant sent that lot of steel. March 30th plaintiffs ordered three tons more, 64 same quality as last." The defendant undertook to fill that order, but failed for the reason stated in its letter to plaintiff of May 17th,

"through a misunderstanding here we did not send the right thing." The defendant then made a second attempt to fill the order, and this after being advised by plaintiffs' letter of May 13th, what the particular defects were, and what use the steel was required for, and that the steel sent before was satisfactory. There was therefore no room for any possible misconception or misunderstanding of the description and quality of the steel which the defendant was instructed to send. The question then is, did the transaction import an undertaking upon the part of the defendant to send plaintiffs steel of the quality theretofore sent, and found to be satisfactory?

Although the term "warranty" is used as expressing, in a general sense' the nature of the defendant's undertaking, there was no warranty in the technical sense of the term. A warranty is an undertaking which, though part of the contract of sale, is collateral to the express object of it - a buyer has a right to expect an article answering the description in the contract; but this is not on the ground of warranty, but because the seller does not fulfill the contract by giving him something different. Abinger, C. B., in Chanter v. Hopkins, 4 Mees. & W. 399, 404; Martin, B., in Azemar v. Casella, L. R., 2 C. P. 677, 699. Such an undertaking is usually treated as a warranty, because the description of the article is deemed a representation that it answers the description. But where there is a collateral representation the rule obtains, that in order to constitute a warranty, it must have been intended as such by the vendor, and understood as such by the vendee.

By assuming to comply with the plaintiffs' order, the defendant undertook to send steel of the same quality as that furnished upon their order of March 5th. The order of March 30th was the one which defendant assumed to fill, and called for steel of the same quality as sent in response to the order of March 5th. The letters and orders of plaintiffs subsequently were but reiterations of the original instruction to send steel of the same quality as sent upon the order of March 5th. There was nothing for the jury to pass upon, and the question was one purely of law, whether defendant undertook to furnish plaintiffs with steel like that sent pursuant to the former order of March 5th. That they did so undertake is perfectly clear. The case, in its facts, is almost identical with Gurney v. Atlantic & G. W. R., 58 N. Y. 358. The rule that the sense in which an affirmation is intended, and whether it was understood and relied on as a warranty, are questions of fact for the jury, has no application to such a case' (Wason v. Rowe, 16 Vt. 525), any more than to the case where an article is sold by a particular description. Hogins v. Plympton, 11 Pick. 100; Winsor v. Lombard, 18 id. 60; Borrekins v. Bevan, 3 Rawle, 23; Richmond Trading Co. v. Farquar, 8 Blackf. 89; Hawkins v. Pemberton, 51 N. Y. 204; Dounce v. Dow, 64 id. 411. Where a vendor agrees to fill an order sent for an article of a particular quality, his liability is the same as when the proposition to sell an article of that description comes from him in the first instance; be is liable if the goods sent do not correspond with the description. Dailey v. Green, 3 Harr. (Pa.)

118.

The evidence was 80 conclusive that there was a breach of the undertaking of the defendant, that the jury would not have been authorized to draw a contrary inference. If all the steel had been used, there might have been a slight question whether or not some fault or error in working it had not been committed by the plaintiffs, although the testimony in their behalf was clear and uncontradicted that they used ordinary care in working it; but the tests made with the steel which had not been used, the entire absence of testimony on the part of the defendant tend

ing to attribute the result to any other causes than the defective quality of the article, and defendant's subsequent implied admission of its defective quality left the case of the plaintiffs free from auy fair doubt.

If the plaintiffs had a right to rely upon the undertaking of the defendant that the steel was of the quality ordered, the latter certainly has no right to complain because the plaintiffs acted upon that assumption. If there is a warranty of kind or quality, the purchaser has a right to assume the warranty to be true, and therefore he may sell with a like warranty, and defend suits for the breach, and recover of the vendor his special damages in consequence of doing so. Clare v. Maynard, 7 Car. & P. 741; Cox v. Walker, id. 744; Swett v. Patrick, 12 Me. 9; Ryerson v. Chapman,66 id. 557; Lewis v. Peake, 7 Taunt. 153.

The testimony undoubtedly shows that up to a certain period in the dealings between the parties it was not certain that the defendant could supply plaintiffs with the desired quality of steel, and that plaintiffs were experimenting to ascertain whether the article sent would answer the purpose. But after the plaintiffs had informed defendant that certain lots had proved satisfactory, and gave an order for the same quality, the latter had no right to assume that future experiments would be made. After their letter of November 6th there was nothing on the part of the plaintiffs to indicate their intention to make experimental tests. It is true that by their letter of May 16th the plaintiffs notified defendant that they had found the lot shipped pursuant to their order of March 30th unfit before using it, but the defendant was aware that this was not owing to any inherent difficulties in the article, but to its own fault in not sending the kind sent before, and by acknowledging its mistake plainly intimated to plaintiffs that it could supply the required article.

It is held in several cases by the courts of New York that upon an executory contract for the sale and delivery of personal property the remedy of the vendee to recover damages, on the ground that the article furnished does not correspond with the contract, does not survive the acceptance of the article by the vendee after opportunity to ascertain the defect. Hargous v. Stone, 5 N.Y. 73; Reed v. Randall, 29 id. 358; Dutchess Co. v. Harding, 49 id. 321.

The later cases in the same courts establish quite decided modifications of the doctrine.

In Gaylord Manufacturing Co. v. Allen, 53 N. Y. 519, the court say:

"It is not intended to express an opinion as to the rule in case there were latent defects, or those which could not be discovered at the time of the delivery or the acceptance of the article." Allen, J.

In Gurney v. Atlantic & G. W. R. Co., supra, it is held not to apply when the defects cannot be ascertained by examination, upon receipt of the article, but only upon use.

In Day v. Pool, 52 N. Y. 416; S. C., 11 Am. Rep. 719; and Purks v. Morris Ax and Tool Co., 54 N. Y. 587, the court held that where there is an express warranty upon an executory contract of sale, the vendee is not bound to return, or offer to return the article; but after acceptance, and after the discovery of its defects, may retain it and recover upon the warranty.

In the cases of Hargous v. Stone, and Reed v. Randall the defects in the article accepted by the vendee were obvious upon inspection, and if the rule is confined to such cases, it is supported by some of the earlier English decisions, and by Sprague v. Blake, 20 Wend. 61. The question is not much considered in Hargous v. Stone, but in Reed v. Randall the authorities are considered, and the cases of Fisher v. Samuda,

1 Camp. 190; Grimuldi v. White, 4 Esp. 95; Milner v. Tucker, 1 Car. & P. 15; and Sprague v. Blake, supra, are cited as holding that the remedy of the vendee does not survive the acceptance of the article, after opportunity to ascertain the defect. The English cases were similar in their facts to Sprague v. Blake, cases where the defects were obvious upon inspection of the article accepted. Some of the early English cases hold that the rule does not obtain where there is an express warranty; but Lord Ellenborough did not make such a distinction, and applied it to such a case in Hopkins v. Appleby, 1 Starkie, 388. Modern text writers of high authority do not adopt the unqualified proposition that the cause of action does not survive an acceptauce, after knowledge that the article is not in compliance with the condition of sale, but state that the silence of the vendee, after acceptance with knowledge of the breach of the contract, may be interpreted as a waiver of a right to complain, and may afford a presumption that the article was satisfactory. Story Sales, § 405; Benj. Sales, §§ 825, 829.

The law was stated by Comstock, J., in Muller v. Eno, 14 N. Y. 597, as follows:

"The omission of the purchaser to give notice or to make complaint, and the manner in which he deals with the goods, may furnish strong presumption against him upon the question whether the warranty is in fact broken, and in regard to the amount of injury he has sustained. But this is a very different thing from saying that the law absolutely deprives him

of relief."

Undoubtedly acceptance after knowledge precludes the vendee from exercising the right to rescind the sale, and the cases of Day v. Pool and Park v. Morris Ax and Tool Co. place the rule upon its correct foundation in this respect.

Manifestly there is no distinction in principle, as to the rights and remedies of a purchaser, between a cause of action arising out of a breach of contract by the vendor to deliver an article of a specified quality or description, or out of the breach of a representation which is collateral to the contract, or out of such a breach when the representation or warranty is im plied instead of being express. In either case there is an agreement, in substance and purport, to the same effect; in either a breach of it works the same injury to the vendee; and in either the same presumption of fact arises from an acceptance of the article after discovery of its defects. Whether the cause of action is for a breach of a contract or for the breach of a warranty is a mere matter of nomenclature (Hastings v. Lovering, 2 Pick. 214; and the breach of a promise im plied by the law works the same consequences, imposes the same obligations, and creates the same rights, as the breach of an express promise. The language of the court in Woolcott v. Mount, 36 N. J. L. 262, is apposite, and is accepted as a sensible and satisfactory exposition of the law, and is as follows:

"The obligation rests upon the contract. Substantially the description is waranted. It will comport with sound legal principles to treat such engagements as conditions in order to afford the purchaser a more enlarged remedy by rescission than he would have on a simple warranty; but when his situation has been changed, and the remedy by repudiation has become impossible, no reason supported by authority can be adduced why he should not have upon his contract such redress as is practicable under the circumstan ces. In that situation of affairs the only available means of redress is by an action for damages. Whether the action shall be technically considered an action on a warranty, or an action for the non-performance of a contract, is entirely immate

rial."