1. The question propounded to the witness Owen, upon his first cross-examination, was properly excluded.
*210• It related to .matter entirely foreign to the issue, and which, so far as appears, could in no way affect the credit of the witness, or the measure of damages.
• 2. The refusal of the court to permit the jury to inspect the samples of furniture produced by the defendant was also entirely proper. The jury are to hear the testimony. An inspection is allowed only in special cases, and generally only by consent of both parties. The present case is within the rule and not within any exception.
3. If it be conceded that upon the issue touching the quality of the goods, the burden of proof lay with the plaintiffs, it would seem that regularly they should have put in their evidence to this in the opening. 1 Grreenleaf s Ev., § 74; Rees v. Smith, 2 Stark. 30; Ford v. Niles, 1 Hill, 300; Hastings v. Palmer, 20 Wend. 226.
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But it is always within the discretion of the court to receive in rebuttal, evidence which in strictness ought to have been produced in chief. Philadelphia, etc., Railroad Co. v. Stimpson, 14 Pet. 448; Kansas Pacific Railroad Co. v. Miller, 2 Col. 442.
Where, as in the present case, nothing appears to show that the objecting party was surprised or prejudiced by the course pursued, error cannot be assigned.
4. Where goods have been sold with a warranty of quality, and those delivered, though inferior to the stipulation, are retained by the vendee, the latter may either pay the price, and have his action for the breach of the warranty, or he may await the vendor’s action for the price, and recoup his damages. All questions whether consequential damages may be the subject of recoupment being put aside, it is manifest that the .same rule must measure the allowance to the vendee, whether he be plaintiff or defendant.
The instructions given by the court, of its own motion, follow the rule, which is almost uniformly prescribed by authority at this day. Sedgw. Dam. 286*-291*; Benj. on Sales, § 903, n,. d.
*211It does not, as supposed by. counsel, make the agreed price the measure of the value of the thing contracted for ; nor as applied to the present case, does it at all differ in result from what I should think the more logical and natural formula contained in the', instructions given on the prayer of the defendants.
Whether in a conceivable case, e. g., where the value of the thing contracted for at-the time when delivery should have been made falls below the agreed price, justice does not require a modification of the rule as generally asserted, may well be questioned; in the case supposed, strict adherence to rule as given in the books, or that prescribed in the instructions given on the part of the defendants in the present case, will exact of the vendee (while deprived of the thing contracted for) more than the value of what he has received, as is susceptible of demonstration; in other words, the rule affords the vendor the benefit of the contract which he has broken. The question does not, however,' arise upon the present record. As to the other points which are complained of in the charge of the court, no error is apparent, for whether right or wrong, it is inconceivable that they can have misled the jury.
5. The allowance to be made to the defendant for the breach of the warranty was dependent upon the credit to be accorded to the several witnesses; and we do not feel called upon to review the verdict in that respect.
No error appearing in the record, the judgment will be affirmed, with costs.
Affirmed.,