I concur. There is a conflict of authority upon the principal question involved in this case, but I think the best-considered decisions support the conclusions reached by Justice McFarland. If a vendor contracts to deliver goods of a certain description, he must deliver sound articles of that description; and if he fails to do so, there is a failure of consideration for the price paid. But if a vendor submits specific articles to the inspection and examination of the purchaser; if he conceals no fact'within his knowledge, and makes no false representation; if each party has equal knowh edge or means of knowledge respecting every fact affecting the soundness and value of the article, — then, if a price is agreed upon, and a sale made, the purchaser cannot, upon the subsequent discovery that the articles sold were in fact worthless, recover the price paid upon the ground of failure of consideration. For having got precisely what he bargained for, he cannot say that there has been any failure of consideration. If he can recover at all, it must be upon the ground of a breach of some implied warranty by the vendor.
Now, in this case, there was no executory contract for the sale of Calaveras County bonds issued under the act of 1868, which would have undoubtedly required the delivery of bonds regularly and lawfully issued under the *127act. On the contrary, certain specific bonds purporting on their face to have been issued under the act were offered for sale. The defendant concealed no fact within his knowledge touching their validity, nor did he misrepresent any fact. Everything he knew the plaintiff knew, and if the plaintiff did not know that they were part of an overissue of bonds, it was only because he chose voluntarily to forego the means of knowledge open and easily accessible to him. He therefore got precisely what he bargained for, and he cannot recover the price paid upon the ground of failure of consideration. And since there was no express warranty, he must rely upon such warranties as the law implies from the nature of the transaction.
On this point it seems to me that section 1774 of the Civil Code, especially in view of the clause eliminated ex industria by the amendments of 1874, is conclusive against the right to recover.