By the Court.
Lumpkin, J.delivering the opinion.
.Formerly it was held that the omission by the vendee to return goods, or to offer to do so, within a reasonable time, *68or to complain of the breach of the warranty, will debar him from relying upon such breach of warranty, in an action for the price; even in cases where an early objection to a return of the goods might have given him a right to reduce the price.—(4 Esp, Rep. 95; Basten vs. Butter, 7 East 479; 1 Stark. Rep. 257; ib. 477; 1 C. & P. 15; 2 ib. 514; 3 ib. 407; 1 Camp. R. 190.)
But Mr. Chitty, in his work on contracts, [9th American edition, 465,) says, that these cases may now be considered as overruled; and that where the vendor of a warranted article, whether it be a specific chattel or not, sues for the price or value, it is competent to the purchaser, in all cases, to prove the breach of the. warranty in reduction of the damages; and the sum to be recovered for the price of the article, will be reduced by so much as the article is diminished in value by the noncompliance with the warranty. (Mondell vs. Steel, 8 M. & W. 858; Allen vs. Cameron, 1 C. & M., 832; Thornton vs. Place, 1 Moo. & Rob. 218; Cormack vs Gillis, cited 7 East. 480; King vs. Boston, id. 481, note; Germaine vs. Burton, 3 Stark. Rep. 32; and see particularly, Street vs. Blay, 2 B & Ad. 456; and see also 2 Smith’s Leading Cases, 16-17, and the rule there stated.)
And by the act of 1836, (Cobb 490,) it is made lawful for defendants to plead a, partial failure of consideration to any contract whatever, any law to the contrary notwithstanding. This statute is exceedingly broad.
Tested by these rules, it is obvious that the Court was wrong in charging as requested by counsel for plaintiff, and in refusing to give the instructions asked by the defendant The proof shows that the defendant complained of the sufficiency of the machinery from the first time he worked the mill; and it does not establish that it ever was perfected by the plaintiff. Nor is there any thing in the testimony to amount to a waiver on the part of Col. Wright of his legal rights of defence, when sued for the purchase money. .
It was obviously wrong to allow the witness Luther R. *69Faught to testify to what he understood, &c.. His evidence was but hearsay, and should have been withdrawn from the consideration of the jury. Besides, if the plaintiff goes upon his contract and not upon the indebitatus count, what has he to do in showing that the defendant was not ready to receive the machinery? He must aver and prove a readiness to perform on his part, at the time stipulated.
Judgment reversed.