
    Samuel Getty, John S. McCune, et al., Pl'ffs in Error, vs. John H. Rountree, Lucian P. Sawyer, et al., Def’ts in Error.
    Every exception taken on the trial of. a cause, should be noted as ' having been taken when the mattor upon which it is based transpired, and it should so appear upon the bill, as made up. The formality of ¡reducing it to form in writing, for the signature of the Judge, m'ay be afterwards done. The Court will decline, in the future, to notice exceptions, otherwise taken.
    On the sale of goods, &c., which are present and in view of the purchaser, no warranty of quality will be implied, where, none is expressly made. The doctrine of caveat emptor applies in such a case. There are exceptions to this rule, to wit: — In the sale of provisions to be used for food; and where there are fraudalent representations by the vendor of goods; where articles or goods are sold by sample, the law implies that the bulk conforms to the, sample exhibited.
    But in executory contracts to furnish articles for a specific purpose, especially for manufacturers, there is an implied warranty that the. article delivered shall answer the purpose for which it wtas designed, inasmuch as the purchaser has not an opportunity of inspecting, or testing it. In such cases there is an implied warranty.
    Where, as in the case at bar, a manufacturer undertakes to deliver a pupip designed to exhap?t, water. from .a, mine, there is an implied. warranty, that in form and structure, it shall he, suitable for the purpose intended by the purchaser, and the law implies a warranty to that extent. In the case last mentioned, ,in case the article is defective,' or unfit for tho use intended, the purchaser may bring-his action for the recovery,of damages, in case the article is detective, fora breach of the implied warranty; or if sued for tho price of the article, he may sot off his damages in such suit in diminution of the sum stipulated to Be paid and thus recoup from the plaintiff
    Where there is fraud in the sale of a chattel, with or without warranty, it,is competent for the vendee to return or offer to return tho article purchased and recover back the purchaso money paid; but it is not necessary, whore ho intends to bring a suit" for tho recovery of his damages for a breach of the warranty, or to set up the breach in reduction of the claim of tho vendor.
    Where there is a warranty, hut no fraud, tho vendee is not entitled, against the will of tho vendor to return the article and recover back the price paid. His only remedy is, by a suit for damages, or by recoupment, in case ho is.sued for the purchase money.
    In case of a warranty, direct or implied, the vendee is not bound, in law, to return or offer to return the article purchased, or to notify tho vendor of its defects; and whore ho has paid a part of tho purchase money, he may, in a suit against him by the vendor for the recovery of the balance of the stipulated price, recoup his damages, by tho reduction of such claim, by way of §et off.
    Error to the Circuit Court for Grtpit County;.
    This was an action of assumpsit on a promissory note, executed by the defendants in' error to the plaintiffs in error for the sum of $400 31; dated October 5,1847, payable three months .after date. The defendants in error pleaded non-assumpsit; and under that plea, gaye notice that they would prove on the trial that the note was given for the balance due on the purchase of a certain pump bought of the plaintiffs by defendants, and sent to defendants, and which pump was defective and in bad condition far use; and they claimed to recoup out of said note the damages which they had sustained by reason of the defects in' the pump.
    On the trial of the cause, the defendants proved as against the plaintiffs claim upon- the note that the plunger of the pump was badly arranged, and not regularly turned, and that the flanges did not correspond, by which they suffered damages to about the amount of four hundred dollars. The defendants gave no notice of these defects in the pump to the plaintiffs; but upon the receipt of the pump put it up and used it in their “ diggings ” until it became unprofitable further to work them, and then sold the pump. There was no proof of any offer to return the pump to the plaintiffs, on the discovery of the defects. The jury found a verdict in favor of the plaintiffs for $66 43. A motion for a new trial was made by the plaintiffs, as based upon the alleged mischarge of the Judge to the jury; and also for his omission to charge the jury rightfully on the law' of the case.
    The motion for a new trial was based upon the following assigned causes :
    1st. “ The defendants did not prove any notice given to the plaintiff’s of any defect in the pump, which formed the consideration of the note sued upon.
    2d. That the Court omitted to charge the Jury that such notice was necessary in order to enable the defendants to withhold any part of the sum due on the note.
    3d. That the Court erred in the charge it did give, in this — the Court charged as follows: 1st. The note itself imports a consideration and prima fame makes out the Plaintiffs’ case, and in the absence of any defence,the plaintiffs, upon the production of the note in evidence, to the Jury, would be entitled to recover. In this case, however, a defence is set up. 2d. It is alleged that there is a failure of consideration, and this failuré may be either total or partial. A total failure of 'consideration is, where the article, furnished or delivered, at a sound price, is worthless or of no value, and Wholly fails to answer the objects or purposes for which it Vas sold; and for which it was held out or represented by the seller to be suitable. 3d. A partial failure of consideration is where the article furnished is üf sorbe value, hut fails in part to'answer the purposes or object for which it was sold, and for which it Was held out or represented by the seller to be suitable. As for instance, by reason of the materials being defective, or of the work being done in an unskillful or unworkman-like mannér.
    4th. If 'therefore; applying these principles of laV to this cáse, the Jury believe, from the testimony submitted to thetó, that there was a total failure, in that case the Plaintiffs áVe not entitled to recover. '5th. I’f, however, the Jury áre not satisfied-from the evidence Submitted to them, that there was a total failure of consideration, but that the consideration of the note sued on and offered in evidence in this cause, has partially failed, then, in that case;, such partial failure of consideration will have the effect of reducing, pro tanto, the plaintiff’s damages. 6tht That when an article is ordered from a manufacturer, for a specific purpose and a round price is paid for it, the law implies a warranty that such article is reasonably fit- for the purposes for which it was vended. 7th. That in case of breach of warranty, or of contract in the sale of chattels, the vendee may retain them and bring his'action on the warranty; or if he be sued for the price, he may, to avoid circuity of action, show a breach of contract in reduction of damages, and this principle applied to the case on trial. 8th. That it was not necessary for the defendants to offer to return the pump, in order to' make their defence available; that a return, or offer to return,' was only necessary where the vendee of the article disaf-firms the contract and seeks to recover back the consideration-paid. In that case, he must return, or offer to return the thing purchased in a reasonable time. 9lb. That .if the Jury should find the pump to have been imperfect and in-non-conformity with the contract, in that case the legal Rule would be to deduct from .the price the, sum ponsti: tuting the difference in value;.
    4th. Because the-Court er.r.ed in the rejection of a part of a certain deposition relating to the expenses of Wood for sunning the Engine and other expenses, and because the Judge allowed certain expenses of defendants as set off byway of reducing damages. 5th. That the verdict was-against law and evidence.
    On the hearing of the motion for a new trial the Judge overruled it. The counsel for the plaintiffs then took an xception as follows: “ To which said ruling of .the court the said plaintiffs excepted.” The counsel of the plaintiffs then moved the Court for judgment, for the amount of the note in suit, and the interest accrued thereon, notwithstanding the verdict of the Jury, This motion was also overruled, and judgment was then ordered and rendered in favor of the plaintiff’s, for the sum of. the verdict and costs; “To which overruling and for insufficiency of said judgment, the plaintiff’s counsel excepted; and thereupon the said plaintiffs, by their counsel, filed their bill of exceptions duly signed and sealed by the Judge.”
    The Record then contains a statement in detail, of the evidence given on the trial of the cause — the ruling and charge of the Judge — the motion for a new trial— the refusal of the Judge to grant it, and the exception of counsel in the overruling the motion. And all these matters are embodied in form in a bill of exceptions, and signed by the'Judge. The Reporter apprehends it to be unnecessary to give a more full statement of the matter, inasmuch ad the opinion of the court will give a clear one of the case.
    
      Mills, for the Plff’s in Error.
    
      B. C. Éastmán, for the Def’ts in Error.
    On the behalf of the plaintiffs in error,'¿laiibe'd that the charge given to the Jury, was erroneous, in regard to there being 'an implied warranty in the sale''of the pump, and urged that no'presutaption 'of warranty arose in law in such'a case. Also,'to'that point of the charge relating to the recoupment of damages; and to these points, cited 2d, Kents. Cbm.,’480; 1 Cowen’s Treat., 356, 358; 15 Peter’s A. B., 372n; 2d Do. 362 and 363. 20 Wendell, 61; 23 Wendell, 350; 1 Campbell, 193. 17 Wen., 263. 4 Espinasse, '95.
    As to the want of notice to plaintiffs of the defect of Machine, there was reference made to Graham on Mew ¡Trials, 293. lsí. Cowen’s Treat., 366. 2d. Wend., 350.
    As to the right of new trial, the counsel .cited Graham, m do., 453, 489. 7 Bao. A. B., L. McLean vs. Middleton, 2 Strange, 1259.
    To the point when exceptions are presumed, there was cited — 9th, Wendell, 241. 6 Cowen, 191 — 4th, Dallas, 237. 10 John., 312.
    
      On the part of the defendants in error, it. was insisted, that when an article was ordered from a manufacturer for a specific purpose, and a sound price paid therefpr, the, law implies a warrant t-Jjal: the article is perfect, and fit for the purposes, for, which, it was: ordered. And to this point was, @ited — 10 Law,Library, 174 — [Rostov, Vendors.) Smith on Contrae‡, 54. Layo Library, 54 — 168;; 2, Sto. Eo., 902 — 15, Corn. L. Rep.’,' 531. 1 do. 327. 2d, do., 316 — 9 Wend., 27, 2,8. Chitty, on Con., 450.
    
    That in case of fraud or breach oil warranty, it is not necessary for the vendee to return, or offer ,tp return the defective article in order to make a defence available in a suit brought to recover the price of the article — and that the vendee, in such a case may s^t off the defects of the thing sold, as against the price of the article, upon the hypothesis that it was to have been sound; and as to this principle, was cited — '7th, East’s.Repy 479 — 14 Mass. R., 282, 285; 8, Wendell, 109, 480, 483. 3 Hill, 171, 2; 13 John, R., 302; 22 Wend., R- 236; 7 Pick., R. 181, 23 do., 283; Story, on Contracts, 99, § 154, 5,51.
   By the Court.

Hubbell, J.

The plaintiffs in error, who were manufacturers, residing at St. Louis, contracted in September, 1847, tp deliver to the defendants in error, who were engaged in the business of mining, in Wisconsin, a pump, “ used for pumping water from a lead mine.” The pump was delivered at Galena, about the last of October following; and the defendants soon after-wards put it up, in connection with a steam engine by yíhich it was to be propelled, in their “ diggings.” The present suit was brought upon a promissory note for about fopr hundred dollars, balancQ of the purchase money.

To the declaration, a plea of general issue was interposed, with a notice of defects and insufficiencies in the pump, on which the defendants claimed to recoupe or reduce the plaintiffs damages, in t'he trial. There was no express warranty,’ by the vendors; and the vendees neither returned, nor offered to return the article, nor gave any notice of its defects, previous to the suit The jury found a verdict for the plaintiffs, of sixty-six dollars and forty-thr.ee cents; and, afterwards, a motion for a new trial was made and overruled.

To this ruleing and to several matters in the instructions of the Court to the jury, exceptions w,ere tajeen by the plaintiffs. But the bill of exceptions does not show, either, at what time they were taken or. what.was their precise/ form or substance. It was urged, on the argument, that the points made, on the- motion for a new trial, were to be regarded as the substance of the plaintiffs exceptions or grounds of error. This, however, is a very, loose practice. Every exception intended to be relied op in error,, should be taken and noted at the trial in conformity tp the existing rules of Court; and afterwards, formally embodied in the bill of exceptions,, signed by the Jpdge. Hereafter, this Court will decline to consider any .exception,, not so taken and brought before it.

The points of the plaintiffs, jn error, which if is material for the Court to examine, arise upon portions of the Judge’s charge to the jury,to which it is understood that exception was taken,. Those portions are as follows:

“ Where an article is ordered, from a manufacturer for a specific purpose, and a sound price is paid for it, the law implies that such article is reasonably fit for the purposes iox which it was ordered*
In case of breach of warranty, or breach of contract in the saie of chattels, the vendee may retain the article and bring his action upon the warranty, or, if he be sued for the stipulated price of the article, he may, to avoid circuity of action,show such breach of warranty or breach of contract, in evidence, in reduction of damages; and the same rule which would apply in an action for breach of •warranty or breach of contract, would apply on giving such breach in evidence in the action upon the note for the price of the article sold.
“ It is not necessary to the maintenance of an action !1br breach of warranty, in' the sale of personal property, "‘that the plaintiff should have returned oroffered to return the property sold. A return or offer, must be shown only where the plaintiff disaffirms the contract and seeks to Recover back the money or other consideration paid,
“ If in this case, the Jury should find from the evidence that there was a partial failure of consideration, by reason of the pump being imperfect or not completed in a workman-like manner, then, the true criterion of a reduction of damages would be the difference between the value of a pump, completed and executed in a workman-like manner, and the actual value of such a pump as was delivered to •the defendants.”

The verdict of the Jury, under the pleadings and evidence, must be regarded as conclusive of the fact of defects existing in the pump; in other words, of a partial failure in the consideration of the note.

The substance of the plaintiff’s objection may be resolved into two questions:

1st. Was there an implied warranty of the article Sold 1 And

'2d. Ought the "defendants, within 'a ’reasonable time after delivery, to have returned, or offered to'return the article, or to'have given notice of its defects,‘in'order to entitle them to their defence.”

The law has been long well settled, both in this coitn'try and in England, that on a sale and transfer of goods or chatties, which are present and in view of the parties, no warranty of .quality, will be implied, where none is expressly made. (1 John. R., 96; 4 Id., 421. 5 Id., 395. 4 Cowan 440. 13 Mass., 139. 17 Wend. 267, 23 Ib., 350; 1 Denio, 378. Chit, on Cont., 3 Am. Ed., 449. 2 Black, Com. 451. 6 Taunt, 108. 1 Camp. 190. 4Cro. Jac. 4.) This is the general rule of the common lawr, upon an executed sale of specific chattels'; and 'rests upon the old adage of Cav'eat Emptor. But there are several exceptions. One is, 'a sale of provisions, tt> be used as food. (3 Black, 165. 12 John. R., 468.) Another is, where there are fraudulent 'representations or conceal-ments by the vendor. (4 Mass., 504. 18 Pick. 95. 8 Met. 550. 4 Com. Law Rep., 486. 4 Camp. 144.

Another exception is, where there is a sale of goods by sample: in which case, although the bulk of the goods may be present or within the reach of the parties, the modern authorities, generally, hold that there is an implied warranty that the article shall agree in substance with the sample. (2 East., 314. 4 Barn & Al., 387. 18 Wend., 425. 1 Denio, 386. 2 Mott & McCord, 530.)

In Sands & Crump vs. Taylor & Lovett, (5 John. Rep., 395.) Chief J. Spencer says: “It has frequently been ¡decided here,'that on the sale of a commodity, no action ban be sustained for any difference in quality between •the'thing contracted for and'the thing delivered, unless there be fraud or a warranty. I am disposed; to confine-this rule to the case of a sale where the thing sold, is ex-, hibited, and am, ready to admit that, on sales by sample^ there is an implied warranty that the sample taken in the psual way, is a, fair specimen of the thing sold.” In the Oneida Manufacturing Society vs. Lawrence, (4 Cowen, 440,) which was a¡ sale of cotton by sample,% the same doctrine was applied, though the plaintiff’s agent saw flip bags in which, the cottop was packed.” And the, Ipai-ned, court of South. Carolina had previously decided, the same principle, in 2, Nott & McCord, 540.

I think this may be. regarded settled law, both in Eng-, land and America; although, in these cases, the British Judges led the way in a departure from the old rule of' common law, in favor of what'has been regarded, by distinguished jurists, as the more doubtful one of the civil law. Moses vs. Mead; 1 Denio, 378. Hart vs. Wright 17 Wend., 276, and remarks of Paige Senator, in Waring vs. Mason, 18 Wend., 439.) 1 do not understand;khowevers, that thpre has been any attempt to disturb the settled doctrine of, CaveakEmptgr, nor to establish as law, what has been termed .the, “moral beauty”-of-the Roman code, tqaveat veyiditor; but to mark distinctly, certain cases,which alike reason and policy.require to be excepted,from, the rigidity .of the one and the láxity of the other.

But executory contracts and,, contracts to furnish-.apti-.. eles . for a specific purpose, especially by manufacturers,., have generally been regarded as resting on a different, basis. In such cases there is held to be an implied warranty that the article delivered shall answer the purpose for which it was designed, inasmuch as the parties have no opportunity to inspect it, or to decide upon its fitness, jin íjie first instance.

Jones vs. Bright (5 Bingham, 533.) is the leading case in,England, op this subject, ip which, nearly all the Judges gave their, views a-t length; affirming Gardner vs. Gray. (1 Camp., 144), and Bluett vs. Osborne (1 Starkey’s Rep., 384), before decided by Lord Ellenborough. Jones vs. Bright was a contract for copper in sheets. Fisher, a. mutual acquaintance of tjie parties, introduced them to each other, saying to thp defendants, “ Mr. Jones is in] want of spme copper for sheathing a vessel, and I have;, pleasure,in recommending, him to you, knowing you will) sell him,&,good article.”-1- One of the defendants answer--., ed, “Your friend, may depend on it, we,will supply him;, well.” The copper wa^afterwards selected by the plain-¡ tiff’s agent, who saw “nothing amiss;’’ and the invoice. described-, the article as “ copper for the ship Isabella.”' 'i';The plaintiff paid the market price for it, as for copper of ' t-he best quality. .The ship proceeded on a voyage to Sierra Leone; and the copper; instead of lasting four or five years, the usual duration, of copper employed in sheathing vessels, at the end of four or five months, greatly corroded, and was unfit for further service. Best, Chief Justice, says: “ I wish to put the case . on a broad principle. If a man sells an article he thereby, warrants it to, be merchantable, — that it is. fit for some purpose. This, was established in Laing vs. Fidgeon. If he sells it for a particular purpose, he thereby warrants it fit for that pur-, pose; and no case has decided otherwise, although there, are, doubtless, some dicta to the contrary.” Park, Jus-,, tice, observes: “On the case itself, I have no doubt, dis-, tinguishing, as I do, between the manufacturer of an ar-, tice and the mere seller.” Again: It has been argued, that in all cases there must have been a warranty or a '.scienter and fraud. 'PérK-aps so; but till the cause come's jto proof, it cannot -appear whether the warranty be eX-I press or implied; and it will be enough'to show'that there j is an implied warranty from the nature of ihe dealings b'e-j tween the parties. In the case referred to, the point has been decided to the'full extent that the plaintiff requires In this ease.. The principal' object' of' attack has been the case of Gray vs. Cox, where Lord Tenterden said, “ that ;if a person sold a commodity fora particular purpose, he ‘.must be understood "to warrant it reasonably fit and pro per for such purpose. And this is -not to'be esteemed an obiter dictum, because the other judges differed from him. It is his judgment formally given, and goes to'supporl the argument for the plaintiff in this cause.”

“ In Fisher vs. Samuda, the plaintiff had paid for the goods after an action had been brought against him for the price, in which he did not, either in bar or reduction of damages;- object to the quality of the goods; so that he rnay be said,Jto have ‘ acquiesced in the defect,, and thfe case has no bearing on the present. In Laing vs. Fidgeon the rule is- laid down in the: strongest ternis; "and no man j had more knbwledge of -commercial law than Chief Jus- ’ ' tice Gibbs. In Gardner vs, Gray, Lord Ellenborough lays down the same rule, and'says'that the principle of caveat emptor does not "apply where the buyer has no opportunity of inspection. It has been árgued'that the plaintiff -. had inspection here, but it was merely"'of 'the exterior of j the commodity, and he had no mdans' of knowing the In-J trinsic quálities. In Okell vs. Smith, it was laid down ( that the seller is bound'to furnish a commodity that'will I answér'the purpose for which it was sold;' and Lord Ellenborough 'said, in Bluett vs. Osborne, that ' by selling an article, the vendor impliedly warrants it fit for the purpose for, which it is. sold, and that it is important for the interests of commerce that it should be, so. I am, therefore, clearly of the opinion.that the, verdict for the plaintiff should stand.”-

I know of no English case which shakes the principle here established., In our ©war Courts, .there has been a strong ¿inclination.to confine the rule to sales for a specific purpose where there was air impossibility of inspecting the article.

In Hart vs. Wright, the cases are all cited, and commented upon, by Coioen, J-, with his usual ability and research; but the point settled in that case does not.conflict with the doctrine that air, article sold for a. specific purpose must be reasonably fit lor the use intended. And in Howard vs. Hoey, (23 Wend., 350), the .same learned Judge reviews the cases relating to executory contracts, ajid not. only, approves of, the English, decisions, but concurs with JS'elson, C. J., in Gallagher vs. Waring, (9 Wend., 28), that “ suitableness enters into every promise .to deliver articles of manufacture.”

I am clear, therefore, that in the present cagq, where the plaintiffs, who were .manufacturers, undertook,to da-liver a pump designed-for pumping water .out of lead rpines, there was an implied warranty, that, .in form and construction, it should be suitable for the purpose intended bv the buyers. And .the charge of the Court on this point was correct..

With respect to thq rights of. thq defendants in this action,.it .presents the ordinary case of a breach of warranty. The defendants were at liberty, either to bring a separata action to .recover their damages for the breach, or, to avail themselves of it in the present action, and reduce the damages of the plaintiffs to the value of the chattel sold. On this point, also, the charge was correct. (Perley vs. Balch, 23 Pick., 283. Borockins vs. Bevan, 3 Rawle, 23. McAllister vs. Real, 4 Wend., 483. Howard vs. Hoey, 23. Ib., 350.

The fact that there was a promissory note raises no barrier to recoupment. Batterman vs. Pierce, (3 Hill, 171), was a suit upon promissory note, and the defence was held good. And the whole doctrine of recoupment is there so ably discussed and so aptly illustrated by Bronson, J., that I need merely refer to it for all the law on the subject. (See also, Basten vs. Butter, 7 East., 490. Cermaine vs. Burton, 3 Starkey’s R., 32, and Poulton vs. Lattimore, 9 Barn. & C., 259.) But the omission to set up such a defence, would have been treated, in a subsequent action by the vendees, on a breach of the warranty, as a waiver of their claim for damages. (Fisher vs. Samuda, 1 Camp., 190.)

I proceed to the last point.

When there is fraud, in a sale of chattels, cither with Or without warranty, it is competent for the vendee to return or offer to return the article sold, and recover back his purchase money; because the sale is void in law. This is necessary where he intends to rescind the contract and sue for, or defeat the recovery of, the whole purchase money. But it is not necessary where he intends to bring suit for the damages merely, by reason of the breach of warranty, or to set up the breach by wav of reducing the vendor’s recovery. (Chitty on Cont., 5 Am. Ed., 458, and cases there cited. 3 Rawle, 23. 2 Starkey’s Ev., 640-5. 1 Mason’s R., 437. 4 Wend., 483; 2 Pick., 215. 12 Wheat., 183.

Where there is :a warranty, and no fraud, the Tendee is not entitled, against the will of the vendor, to return the article and recover back the price paid. (Cary vs. Gruman, 4 Hill, 625. Kase vs. John, 10 Watts, 109. Sheet vs. Clay, 2 Barn & Al., 456.) His only remedy is, by a suit for damages, or by recoupment, in case of an action for the purchase money. Unless, therefore, in the present cose, there was proof of fraud, on the part of the vendors, — of which none appears, the defendants could not compel them to take back the pump; and there was no occasion for' making a useless tender of what the plaintiffs might accept or refuse. Nor was there any necessity of a notice of defects. The notice annexed to the plea was -alike sufficient in law and in reason.

The defendants had already paid half the price of a sound article; had spent much time and money in transporting it to their mine -and setting it in operation in connection with other fixtures; and it failed to work well, by reason of its improper or imperfect construction. To return it, and resort to an action for the recovery of their money paid, would have been but adding to their losses.

Yet, a notice of its defects, to the plaintiffs, would have been idle, except to bind them to take it back, which thé defendants could not permit, 'or to give the defendants a better claim for returning it, which; as we have seen; the plaintiffs might refuse. But the law required no such notice. The remedy of the defendants consisted in reducing the plaintiff’s demand to the actual value of the article delivered. This was their legal right. (Cary vs. Gruman, 4 Hill, 625.) And this has been done; not by rescinding the contract, nor by treating it as void for fraud; but by letting ita an equitable defence, consistent with the retention of the property and the affirmance of the sale by the vendees.

I am satisfied with the instructions of the Court and the verdict of the Jury.

Judgment affirmed with costs.  