
    Rutter vs. Blake.
    If the seller of goods affirms i heñí to be of a pavtienhtr quality, ami th<* buyer receives them upon the creditofsuch afiii> mation? and they afterwards appear to he different* the purchaser may return the goods, and recover back the money, in an action for money hao and íeeeived; or he may have hii> action with* out a return of the goods, if lit gave notice to the seller where tln¡y are di positdd.
    If A sells a horse tó B,- affirming him to he sound— U receives the horse, and sets out on a journey,- hut finds the horse to be unsound, and leaves him on the road, he may recover hack the money paid* in an action for money had and received* if he gives notice to A where tha horse is, and he i» not bound to re* turn the horse.
    But if B give* no notice to Af but sends the horse to vendue, ami sells him for half s-vhat he pave, B has elected to abide by his contract, and he cannot resort to A to make good the dig Sttrenee of price. ,
    Appeal from Baltimore county coiirt. The appellee brought an action of assumpsit against the appellant, on a promissory note drawn, on the 4th of July 1800, by him and Éihoard Rutter, deceased, whom he survived,, for SI 012 50, payable sixty days after date to Edward Johnson, or order, arid by him endorsed to William, MacCreery, or order, and by him endorsed to the appellee. The general issue was pleaded; and at the trial, the plaintiff produced and read the note in evidence. The defendant then offered in evidence an agreement made between him and the plaintiff, viz. That the promissory note, declared oil in this case, was given for goods purchased by the defendant, and É. Butter, (since deceased,) of the plaintiff. That the defendant, in the trial of this cause, may inquire into and offer evidence of the consideration of the nóte, and avail himself of the want of consideration for the whole, or any part of the note, as fully as the defendant might legally do, it the note had been originally given by T. fy E. Butter to the plaintiff, and the plaintiff had brought his action as payee of the note against the defendant. The defendant further offered evidence to prove, that he and E. Rutter, on the 1st of March 1800, at Baltimore • ' . 1 • ^ ’ • , • . ■ county, purchased three bales of blue Guerrahs, and that the note, with the indorsements, was given by T. S' E. Rutter to the plaintiff, to secure the payment of the purchase money 'of these goods. That E. Rutter, since tlie execution of the note, died; and that T. S" E. Rutter did not, at the time of the sale, or at any time previous to the arrival of the goods in the West Indies, as hereafter stated, examine the goods. That 71 S' E. Rutter shipped the goods to the Island of Currocoa, in (he fleet Indies', and there sold them on the 2d of April 1800, for and on their account. That the three bales of goods were not blue Guerrahs, bút goods of a different and inferior quality. That T. &r E. Rutter had sustained damage and loss, by reason of the false representation and warranty made by the plaintiff, in the sale of the goods. The plaintiff íheií prayed the court to direct the jury, that if they should be of opinion, that the defendant and E. Rutter did receive and make sale of the goods in Currocoa, on their own account, and for their own use, the defendant is not in law entitled to any deduction for any loss or damage sustained by the defendant and E. Rutter, in consequence of any warranty of the goods by the plaintiff. The county court, (II. Ridgely, Ch. J.) delivered the following opinion: Generally, j in the sale of goods, if the seller affirms them to be of a particular quality, and the buyer receives them upon the credit of this affirmation, and they after-wards appear to be different from what they were affirmed to be, the purchaser may return the goods, and recover back the money, in an action for money had and received, or he may even have his action without a return of tiie goods, if he give notice to the seller where they are deposited. As, where A sells a horse to B, affirming, him to be sound, B receives the horse, and sets out on a journey, but finds the horse to be unsound, and leaves him on the road, he may recover back the' money he paid for him, in an action for money had ánd received, if he gives notice to the seller where the horse is, and he is not bound to return the horse. It was the conduct of the seller that was the original cause of the horse being at a distance and out of his possession, and he must put up with the loss and inconvenience. ( So if a merchant in Baltimore buys goods, the seller warranting them to be of a particular description of quality, and the merchant, with-©lit examining, sends them to the West Indies, where i ©pon opening he finds them not to be of the quality warranted, he may store them, give notice to the seller, and recover back the money paid for them, in an action for money had and received; or he may bring his action on j the special agreement of warranty, and recover damages for the full amount of the injury he has sustained, nor ia I he obliged to return the goods, or put himself to any fur- I tber expense or trouble about them., This, I take it, was) exactly the defendant’s situation when the goods arrived in the West Indies, Tie had his option to do.one of two' things; first, to refuse to keep the goods, declining to go, ‘ on with the purchase; or secondly, to accept the goods in lieu of those gold him, and to confirm the purchase by j going on to sell them, and receiving the amount of salcsj V hat does lie do? Why he adopts the latter of the two alternatives — He sells the goods, and receives the money— notas agent for. the seller, that is not intended, but upon his own account. This mode of proceeding by the defendant, however hard it bears upon liiip, I am of opinion has deprived him of a remedy here upon the warranty. Let ns suppose A to sell a horse to B, with warranty that he is sound. B receives the horse, and riding him home discovers him to be unsound, and-says nothing of this to A, but sends the horse to vendue, and sells him for half what he gave for him. Mere he has elected to abide by his contract, and I take it lie can never resort to the original seller to make good the difference of price. I think the ©ases I have put are similar to the eas.e before the courts and that the warranty, if any made, cannot avail the defendant so as to entitle him to a deduction of the warranty for any damage or loss by him sustained* Suppose the plaintiff bad received the goods on sale, with warranty to him, and has paid the amount — if he does not recover of the defendant, neither can lie recover of the person who sold them to him; the defendant has put it out- of the plaintiff’s power; for the defendant, having sold the goods,, the plaintiff cannot return them, or give notice to tire person who sold them to him where they are. Therefore it may be that the plaintiff' paid the price of first quality goods; and if he should not be permitted to recover against the defendant, he will lose the difference of price between goods of the best and goods of inferior quality. Whereas?, had the goods not been disposed of by the defendant, the, plaintiff could have returned or given notice where the goods were stored, and recovered over from the person who sold to him. It is true, that if at the time of making this note any particular agreement or understanding took, place between the plaintiff, or his agent MacCreery, and .the defendant, that a deduction should be made on account of any defect in the goods, that the defendant hasl bis remedy; in .equity by making them parties, or in this court, if he can prove the note was delivered with such intention dr understanding of the parties. The defendant excepted, and. the verdict and judgment being against him, he brought this appeal.
    The case was submitted to the court without argument.
    
      If. Dorsey, for the Appellant.
    
      Durviance and S, Chase, Jr. for the Appellee.
   JUDGMENT AFFIRMED^  