There are no questions, about which the decisions of the courts of this country and of England, have been mo're *273various, than they have been concerning those questions which so often arise out of the doctrine of implied warranties. And even upon the question of warranty itself, the decisions are extremely contradictory. In cases of express warranty, few difficulties are encountered, and the rules of law are sufficiently certain and fixed. The difficulties, of which the books are full, arise in cases where the questions are, whether there is an implied warranty, or not, and what are the respective rights and duties of vendors and vendees, in siich cases. The old rule, and the general rule, as stated in the books, is, that a fair price implies a warranty of title, but that, as respects the quality of the article sold, the seller is not bound to answer. This rule, however, has received certain modifications, which have been generally recognized by the courts. One of these modifications, for example, is, that where goods are sold by sample, there is an implied warranty, that the bulk of the goods delivered, shall correspond with the sample exhibited. This general subject is fully discussed in 2 Kent’s Com., between pages 473 and 481, and in the notes to the text: also in Story on Sales, and Parsons on Contracts.
It would be an unnecessary labor, and an improper consumption of time, in the midst of the mass of business which now presses upon the court, to review all the cases which are cited, and partially discussed, by the authors above named. We can merely state the conclusions of those learned writers, and endeavor, from a few general considerations, to ascertain the law applicable to the present case. In stating the general rule, Chancellor Kent says, that “the common law very reason- “ ably requires the purchaser to attend, when he makes his “contract, to those qualities of the article he buys, which are “ supposed to be within the reach of his observation and judg“ment, which it is'equally his interest and his duty to exert.” He then quotes the case of Seixas v. Woods, 2 Caines’ Rep. 48, and the case of Swett v. Colgate, 20 Johns. Rep. 196, where the general rule was enunciated, “that if there was no express “ warranty by the seller, and no fraud on his part, the buyer, *274“who examines the article himself, must abide by all losses “arising from latent defects, equally unknown to both parties.” The learned author adds, “that the rule fitly applies to the “case, where the article was equally open to the inspection “and examination of both parties, and the purchaser relies on “his own information and judgment, without requiring any warranty of the quality. But,” he adds, “the rule does not “reasonably apply to those cases, where the purchaser has “ ordered goods of a certain character, and relies on the judg“ment of the seller; or where goods of a certain described “quality are offered for sale, and when delivered, they do not “answer the description directed, or given in the contract. “They are not the articles which the vendee agreed to purchase; and there is an implied warranty, that the article shall “ answer the character called for, or be of the quality described, “and saleable in the market, and under that denomination.”
Without pursuing this branch of the subject further, we may assume, as a correct rule, deducible from the authorities, that where sales are made by sample, there is an implied warranty, that the goods delivered shall correspond with the sample. And where goods are ordered by one dealer, and sent by another, there is an implied warranty, that the goods sent shall correspond to the order, or that they are merchantable, and suited to the market where they are to be sold.
The rule of caveat emptor is founded in the idea, that the purchaser sees what he buys, and exercises his own judgment; and the strong tendency of the modern decisions, is, to imply a warranty of quality, in all eases where the purchaser has no opportunity to exercise his own judgment, but relies on the judgment of the party with whom he deals. If goods are sent, upon order, by a New York merchant, to a Texas merchant, the law will imply a warranty, that the goods sent are such as were ordered; or, if goods are sent by a New York merchant, to a Texas merchant, without a special order, but upon a general engagement to forward goods, the law will imply a warranty, that all goods sent are valuable and merchantable.
*275We conclude, then, that in this case, whether the sale was by sample or not, there was an implied warranty of the tobacco.
The next question is, whether or not, the appellants had the right to plead and prove a partial failure of consideration, without an offer to return the tobacco. The plea, in this case, was a plea of total failure of consideration. But under this plea, the defendants might show a partial failure of consideration, as has been often decided by this court.
In England, a party is not permitted to show a partial failure of consideration, in a suit on a bill of exchange, though he may show a total failure of the consideration. (2 Kent’s Com. 473, and cases cited in the note.) The same rule has obtained in some of the States of this Union, and is yet adhered to by the courts; though, in most of the States, statutory regulations exist, authorizing parties to plead failure of consideration, either in whole or in part.
In England, and in those States of our Union where a party is not permitted to plead a partial failure of consideration, in an action on a note, or bill of exchange, many cases will be found, which assert this doctrine; but the principle on which these decisions are based, has no application in this State, where our statute exjmessly authorizes defendants to plead a partial failure of consideration. (Hart. Dig. Art. 2527.)
We believe the rule to be established, by the weight of modern authority, that in all cases, where there is either an express or an implied warranty, the vendee of goods may show a partial failure of consideration, in defence of - an action against him for the purchase money, without returning the goods. (See 1 Parsons on Cont. 473, 474, and the cases there cited; 2 Kent’s Com. 474, and the cases cited in the note.)
If the vendee of goods, in cases where there is either an express or an implied warranty, would rescind the sale, and recover back the purchase money, he must, within a reasonable time, return the goods, or offer to return them, unless indeed, the goods are wholly worthless; in which latter case, the ven*276dee is not obliged to return them, or to offer to return them, before be can sue to recover back tbe price, or defend against an action for tbe price. (2 Kent’s Com. 480, and eases cited in tbe note; Story on Cont. p: 931, § 844 a; Christy v. Cummins, 3 McLean’s Rep. 386.)
We conclude, that there vas error in tbe charge of tbe eourt, for vhieh tbe judgment must be reversed, and tbe cause remanded for another trial, vhieh is accordingly done.
Reversed and remanded.