We think the judge came to a wrong conclusion. The defendants agreed to deliver 517 barrels of strained rosin, which clearly amounts to a warranty that the article which they deliver is of that specific description. It may be called a condition precedent, and so it is, for the purpose that the vendee is not obliged to receive the article unless it comes within the description. But it is more than that, for it is held, as will presently be seen, that after the vendee has received and retained the articles, he may recover damages if they do not come within the specific description; the description must therefore be a warranty, or what practically is equivalent to it. Benjamin on Sales, secs. 600, 647. Of course, it is not meant that words of description are always a warranty. But the cases in which that is held have all something special to take them out of the rule, and to show that in those (326) cases it was not so intended.
That plaintiffs had an opportunity to inspect the rosin before or when it was delivered, and did in fact select the particular barrels out of a large number, did not amount to a waiver of the warranty that it should be of the specific description. This is reasonable. It is almost impossible, or at least very difficult, to tell from any inspection of a barrel of rosin, short of breaking it up into fragments, whether it contains dross, that is, chips, dirt, etc., or not. And to break it up makes it unfit for transportation, and unmarketable. All the above propositions are supported by authority.
In Jones v. Just, L. R., 3, Q. B., 197, Mellor, J., says: "In general, on the sale of goods by a particular description, whether the vendee is able to inspect them or not, it is an implied term of the contract that they shall reasonably answer such description, and if they do not, it is unnecessary to put any other question to the jury."
The judge refers to the case of Josling v. Kingsford, C. B., N.S., 447 (106 E. C. L.), in which it is distinctly held that even if the vendee has an opportunity to examine the goods before receiving them, yet if the defect be not patent, he may receive them, and maintain an action upon the warranty that they did not come within the specific description. *Page 218 Examination, or what is the equivalent, an opportunity of examination, is a waiver of any implied warranty as to the quality of the goods, but not that they shall be of the specific description.
On the argument, Lush, Q. C., for the vendor, who was the defendant, in reply to a remark of Erle, C. J., said: "That raises the broad question which has never yet specifically been decided, viz., whether upon a sale of goods where the buyer has an opportunity of inspecting them, and buys, relying on his own judgment, any warranty can be implied either as to quality or as to the thing being that which it is (327) represented to be." The decision was as above stated. This case is on all-fours with the one before us, and both as reasoning and, on a question of this sort, as authority, must be deemed conclusive. See, also, Allen v. Lake, 18 Q. B., 560; Benjamin on Sales, sec. 600, note p., sec. 647.
It is said, however, that as soon as the plaintiff discovered that a part of the rosin did not come within the description of strained rosin, which he did after it arrived in New York, he was bound to notify the defendants of the defect and to offer to return the rosin to them. We think this is answered by Poulton v. Lattimore, 9 B. and C., 259 (17 E. C. L., 373). In that case Littledale, J., said: "I am of opinion that where goods are warranted, the vendee is entitled, although he do not return them to the vendor or give notice of their defective quality, to bring an action for breach of the warranty," etc. It is true, in that case the plaintiff declared upon a breach of warranty as to quality; but there can be no difference in principle between such a warranty and one as to the identity of the article. Benjamin on Sales, secs. 897 and 899, note r. The only result of a failure to offer to return the goods, or to notify the vendor of their defective quality, is to raise a presumption that the complaint of the quality is not well founded. In this case the plaintiff had paid for the goods, and the property in them had passed to him. The defendant was under no obligation to receive them back and return the price. The case of Cox v. Long, 69 N.C. 7, supports this view. The plaintiff had contracted and paid for shingles of certain dimensions, and had received and used those delivered with knowledge that they did not correspond to the warranty, without having offered to return them; and it was held that he was entitled to recover (328) damages for breach of the warranty. We think the judge erred in holding that the plaintiff was not entitled to recover.
PER CURIAM. Reversed.
Cited: Lewis v. Rountree, 79 N.C. 123; Lewis v. Rountree, 81 N.C. 20;McKinnon v. McIntosh, 98 N.C. 92; Love v. Miller, 104 N.C. 586;Alpha Mills v. Engine Co., 116 N.C. 802; Ferrell v. Hales, *Page 219 119 N.C. 213; Kester v. Miller, Ib., 478; Finch v. Gregg, 126 N.C. 179;Reiger v. Worth, 130 N.C. 269; Allen v. Tompkins, 136 N.C. 210; Parkerv. Fenwick, 138 N.C. 217; Wrenn v. Morgan, 148 N.C. 105; Woodridge v.Brown, 149 N.C. 304; Robertson v. Halton, 156 N.C. 220; Hodges v.Smith, 158 N.C. 261; Underwood v. Car Co., 166 N.C. 460; Tomlinson v.Morgan, Ib., 560; Winn v. Finch, 171 N.C. 275.