The opinion of the court was delivered by
Redfield, Ch. J.The report of the auditor certainly puts the case upon the ground that the defendant gave no notice to the plaintiffs of repudiating the sale, either immediate or in a reasonable time. Unless, then, we could say that the testimony in the case had no tendency to prove such facts, the finding of the auditor will be conclusive of the facts found. Although there is probably considerable ground of difference of opinion in regard to whether the testimony did tend to show a repudiation of the sale, we think it would be difficult to come to the conclusion that there is no testimony tending to show that the defendant did not repudiate the sale. His conduct and declarations as far as reported by the auditor certainly shews that the plaintiffs’ agent supposed, and was perhaps justified in supposing that the defendant intended to accept the stones, but would claim something more to be done to them. This will be a ratification of the sale but not a waiver of all claim for deduction in the price on account of the inferiority claimed and shown, and probably not of the right to' claim damages in a separate action on the ground of the contract not being fully performed.
As there must be a recovery for the value of the stones, it would be no benefit to the defendant to recommit the case on that point.
Judgment reversed and judgment on report for the plaintiff.