
    George A. Kent et al., Respondents, v. Leonard Friedman, Appellant.
    Where an executory contract for the sale of goods is with warranty, that they shall be good, sound, and all right, and equal to a sample shown, an acceptance of the goods after opportunity to examine them does not preclude the purchaser from claiming and recovering damages for breach of the warranty.
    (Submitted December 4, 1885;
    decided December 22, 1885.)
    The following is the mem. of opinion herein :
    “ This action is to recover damages for breach of warranty upon an executory sale of tobacco by the defendant to the plaintiffs. The facts as found by the referee, upon sufficient evidence, must be taken as true that the sale was by sample, the defendant representing that the sample was a true sample of the tobacco sold, and that the tobacco was not only as good as the sample, but good, sound, and all right. Upon these facts a breach of warranty and damages being proved, the only defense open to the defendant was the acceptance of the tobacco by the -plaintiffs. That such a warranty survives acceptance has been repeatedly decided by this court, the last time in Brigg v. Hilton (99 N. T. 517). In that case there was an ex-ecutory contract for the sale of cloths by samples which were sound and perfect, the plaintiffs representing that the cloths were of similar fabric and similar quality, equal in every respect to the samples; and it was held that acceptance by the defendants of the cloths, after opportunity for their examination, did not preclude them from claiming and recovering damages for breach of the warranty. That case is not distinguishable from this and must control our decision.
    
      “We have considered all defendant’s exceptions to rulings upon questions of evidence, and are satisfied that they point out no prejudicial error.
    “ The judgment should be affirmed, with costs.”
    
      Alex. Gumming for appellant.
    
      D. 8. JEtioha/rds for respondents.
   Earl, J.,

reads for affirmance.

All concur.

Judgment affirmed.  