The plaintifis in error, who were manufacturers, residing at St. Louis, contracted in September, 1847, to deliver to the defendants in error, who were engaged in the business of mining, in Wisconsin, a pump, “used for pumping water from a lead mine/' The pump was delivered at Galena, about the last of October following, and the defendants soon afterwards put it up, in connection with a steam engine by which it was to be propelled, in their ■“ diggings.” The present suit was brought upon a promissory note for about $400, balance of the purchase money.
To the declaration, a plea of general issue was interposed, with a notice of defects and insufficiencies in the pump, on which the defendants claimed to recoup or reduce the plaintiffs’ damages, in the trial. There was no express warranty by the vendors, and the vendees neither returned, nor offered to return the article, nor gave any notice of its defects, previous to the suit. The jury found a verdict for the plaintiffs of sixty-six dollars and forty-three cents, and, afterwards, a motion for a new trial was made and overruled.
To this ruling, and to several matters in the instructions of the court to the jury, exceptions were taken by the plaintifis. But the bill of exceptions does not show, either at what time they were taken, or what was their precise form or substance. It was urged, on the argument, that the points made, on the motion for a new trial, were to be regarded as the substance of the plaintiffs exceptions oi grounds of error. This, how*385ever, is a very loose practice. Every exception intended to be relied on in error, should be taken and noted at the trial in conformity to the existing rules of court, and afterwards formally embodied in the bill of exceptions, signed by the judge. Hereafter this court will decline to consider any exception not so taken and brought before it.
The points of the plaintiffs in error, which it is material for the court to examine, arise upon portions of the judge’s charge to the jury, to which it is understood that exception was taken. Those portions are as follows:
“Where an article is ordered from a manufacturer for a specific purpose, and a sound price is paid for it, the law implies that such article is reasonably fit for the purposes for which it was ordered.
“In case of breach of warranty, or breach of contract in the sale of chattels, the vendee may retain the article and bring his action upon the warranty, or, if he be sued for the stipulated price of the article, he may, to avoid circuity of action, show such breach of warranty or breach of contract, in evidence, in reduction of damages; and the same rule which would apply in an action for breach of warranty or breach of contract, would apply on giving such breach in evidence in the action upon the note for the price of the article sold.
“It is not necessary to the maintenance of an action for breach of warranty, in the sale of personal property, that the plaintiff should have returned, or offered to return, the property sold. A return or offer must be shown only where the plaintiff disaffirms the contract and seeks to recover back the money or other consideration paid.
“ If, in this case, the jury should find from the evidence that there was a partial failure of consideration, by reason of the pump being imperfect or not completed in a workman-like manner, then the true criterion of a reduction of damages would be the difference between the value of a pump, com-: *386pleted and executed in a workman-like manner, and the actual value of such a pump as it was delivered to the defendants.”
The verdict of the jury, under the pleadings and evidence, must be regarded as conclusive of the fact of defects existing in the pump, in other words of a partial failure in the consideration of the note.
The substance of the plaintiffs’ objections may be resolved into two questions:
1. Was there an implied warranty of the article sold? and,
2. Ought the defendants, within a reasonable time after delivery, to have returned or offered to return the article, or to have given notice of its defects, in order to entitle them to their defense ?
The law has been long well settled, both in this country and in England, that on a sale and transfer of goods or chattels which are present and in view of the parties, no warranty of quality will be implied where none is expressly made. 1 Johns. 96; 4 id. 421; 5 id. 395 ; 4 Cow. 440 ; 13 Mass. 139; 17 Wend. 267; 23 id. 350; 1 Denio, 378; Chit. Cont., 3d Am. ed. 449 ; 2 Black. Com. 451; 6 Taunt. 108 ; 1 Camp. 190 ; 4 Cro. Jac. 4. This is the general rule of the common law upon an executed sale of specific chattels, and rests upon the old adage of caveat emptor. But there are several exceptions. One is a sale of provisions to be used as food. 3 Black. Com. 165 ; 12 Johns. 468. Another is, where there are fraudulent representations or concealments by the vendor. 4 Mass. 504; 18 Pick. 95; 8 Met. 550; 4 Eng. C. L. 486; 4 Camp. 144.
Another exception is, where there is a sale of goods by sample, in which case, although the bulk of the goods may be present or within the reach of the parties, the modern authorities generally hold that there is an implied warranty that the article shall agree in substance with the sample. 2 *387East, 314: 4 Barn. & Aid. 387; 18 Wend. 425; 1 Denio, 386; 2 Nott & McCord, 530.
In Sands v. Taylor, 5 Johns. 395, SpeNcer, C. J., says : “ It has frequently been decided here that on the sale of a commodity no action can be sustained for any difference in qualify between the thing contracted for and the thing delivered, unless there be fraud or a warranty. I am disposed to confine this rule to the case of a sale where the thing sold is exhibited, and am ready to admit that on sales by sample there is an implied warranty that the sample, taken in the usual way, is a fair specimen of the thing sold.” In Oneida Manufacturing Society v. Lawrence, 4 Cow. 440, which was a sale of cotton by sample, the same doctrine was applied, “ though the plaintiff’s agent saw the bags in which the cotton was packed.” And the learned court of South Carolina had previously decided the same principle in 2 Nott & McCord, 540.
I think this may be regarded settled law, both in England and America, although in these cases the British judges led the way in a departure' from the old rule of the common law, in favor of what has been regarded by distinguished jurists as the more doubtful one of the civil law. Moses v. Mead, 1 Denio, 378; Hart v. Wright, 17 Wend. 276, and remarks of Paige, Senator, in Waring v. Mason, 18 Wend. 439. I do not understand, however, that there has been any attempt to disturb the settled doctrine of caveat emptor, nor to establish as law what has been termed the “moral beauty” of the Roman code, caveat venditor, but to mark distinctly certain cases which alike reason and policy require to be excepted from the rigidity of the one and the laxity of the other.
But executory contracts, and contracts to furnish articles for a specific purpose, especially by manufacturers, have generally been regarded as resting on a different basis. In such cases there is held to be an implied warranty that the article delivered shall ansyer the purpose for which it was designed, *388inasmuch as the parties have no opportunity to inspect it, or to decide upon its fitness in the first instance.
Jones v. Bright, 5 Bing. 533, is the leading case in England on this subject, in which nearly all the judges gave their views at length, affirming Gardner v. Gray, 1 Camp. 144, and Bluett v. Osborne, 1 Stark. 384, before decided by Lord ElleNBOROugh. Jones v. Bright was a contract for copper in sheets. Fisher, a mutual acquaintance of the parties, introduced them to each other, saying to the defendants, “ Mr. Jones is in want of some copper for sheathing a vessel, and I have pleasure in recommending him to you, knowing you will sell him a good article.” One of the defendants answered, “Your friend may depend on it, we will supply him well.” The copper was afterwards selected by the plaintiff's agent, who saw “nothing amiss,” and the invoice described the article as “ copper for the ship Isabella.” The plaintiff paid the market price for it, as for copper of the best quality. The ship proceeded on a voyage to Sierra Leone, and the copper, instead of lasting four or five years, the usual duration, of copper employed in sheathing vessels, at the end of four or five months greatly corroded, and was unfit for further service. Best, C. J., says: “I wish to put the case on a broad principle. If a man sells an article, he thereby warrants it to be merchantable, that it is fit for some purpose. This was established in Laing v. Fidgeon. If he sells it for a particular purpose, he thereby warrants it fit for that purpose; and no case has been decided otherwise, although there are doubtless some dieta to the contrary.” Park, J., observes : • “ On the case itself I have no doubt, distinguishing, as I do, between the manufacturer of an article and the mere seller.” Again: “It has been argued that in all cases there must have been a warranty or a scienter and fraud. Perhaps so; but till the cause comes to proof, it cannot appear whether the warranty be express or implied; and it will be enough to show that there is an implied warranty from the nature of the *389dealings between the parties. In tbe case referred to, the point has been decided to the fall extent that the plaintiff requires in this case. The principal object of attack has been the case of Gray v. Cox, where Lord TendereeN said ‘ that if a person sold a commodity for a particular purpose, he must be understood to warrant it reasonably fit and proper for such purpose. And this is not to be esteemed an obiter diotum, because the other judges differed from him. It is his judgment formally given, and goes to support the argument for the plaintiff in this cause.’
“ In Fisher v. Samuda, the plaintiff had paid for the .goods after an action had been brought against him for the price, in which he did not, either in bar or reduction of damages, object to the quality of the goods, so that he may be said to have acquiesced in the defect, and the case has no bearing on the present. In Laing v. Fidgeon the rule is laid down in the strongest terms, and no man had more knowledge of commercial law than Chief Justice Gebbs. In Gardner v. Gray Lord EleeNBORotigh lays down the same rule, and says that the principle of caveat emptor does not apply where the buyer has no opportunity of inspection. It has been argued that the plaintiff had inspection here, but it was merely of the exterior of the commodity, and he had no means of knowing the intrinsic qualities. In Okell v. Smith it was laid down that the seller is bound > to furnish a commodity that will answer the purpose for which it was sold; and Lord ElleN-borough said, in Bluett v. Osborne, that by selling an article, the vendor impliedly warrants it fit for the purpose for which it is sold, and that it is important for the interests of commerce that it should be so. I am therefore clearly of the opinion that the verdict for the plaintiff should stand.”
I know of no English case which shakes the principle here established. In our own courts there has been a strong inclination to confine the rule to sales for a specific purpose, where there was an impossibility of inspecting the article.
*390In Hart v. Wright, tbe cases are all cited, and commented upon by CoweN, J., with bis usual ability and research, but tbe point settled in that case does not conflict with tbe doctrine that an article sold for a specific purpose must be reasonably fit for tbe use intended; and in Howard v. Hoey, 23 Wend. 350, tbe same learned judge reviews tbe cases relating to executory contracts, and not only approves of the English decisions, but concurs with NelsoN, C. J., in Gallagher v. Waring, 9 Wend. 28, that “suitableness enters into every promise to deliver articles of manufacture.”
I am clear, therefore, that in tbe present case, where tbe plaintiffs, who were manufacturers, undertook to deliver a pump designed for pumping water out of lead mines, there was an implied warranty that, in form and construction, it should be suitable for tbe puqaose intended by tbe buyers; and tbe charge of tbe court on this point was correct.
With respect to tbe rights of tbe defendants in this action, it presents tbe ordinary case of a breach of warranty. Tbe defendants were at liberty, either to bring a separate action to recover their damages for tbe breach or to avail themselves of it in the present action, and reduce tbe damages of tbe plaintiffs to tbe value of tbe chattel sold. On this point also tbe charge was correct. Perley v. Balch, 23 Pick. 283; Borockins v. Bevan, 3 Rawle, 23; McAllister v. Read, 4 Wend. 483; Howard v. Hoey, 23; id. 350.
The fact that there was a promissory note raises no barrier to recoupment. Batterman v. Pierce, 3 Hill, 171, was a suit upon promissory note, and tbe defense was held good; and tbe whole doctrine of recoupment is there so ably discussed and so aptly illustrated by BroNSON, J., that I need merely refer to it for all tbe law on tbe subject. See, also, Basten v. Butter, 7 East, 490; Germaine v. Burton, 3 Stark. 32; Poulton v. Lattimore, 9 Barn. & C. 259. But tbe omission to set up such a defense would have been treated, in a subsequent action of tbe vendees on a breach of tbe warranty, as a waiver *391of their claim for damages. Fisher v. Samuda, 1 Camp. 190.
I proceed to the last point.
When there is fraud in a sale of chattels, either with or without warranty, it is competent for the vendee to return or offer to return the article sold and recover back his purchase money, because the sale is void in law. This is necessary where he intends to rescind the contract and sue for or defeat the recovery of the whole purchase money. But it is not necessary where he intends to bring suit for the damages merely, by reason of the breach of warranty, or to set up the breach by way of reducing the vendor’s recovery. Chitty on Cont. 5th Am, ed. 458, and cases there cited; 3 Rawle, 23; 2 Stark. Ev. 640, 645; 1 Mason, 437; 4 Wend. 483; 2 Pick. 215; 12 Wheat. 183.
Where there is a warranty and no fraud, the vendee is not entitled, against the will of the vendor, to return the article and recover back the price paid. Cary v. Gruman, 4 Hill, 625; Kase v. John, 10 Watts, 109; Sheet v. Clay, 2 Barn. & Al. 456. His only remedy is, by a suit for damages, or by recoupment, in case of an action for the purchase money. Unless, therefore, in the present case, there was proof of fraud. on the part of the vendors — of which none appears — the defendants could not compel them to take back the pump, and there was no occasion for making a useless tender of what the plaintiffs might accept or refuse. Nor was there any necessity of a notice of defects; the notice annexed to the plea was alike sufficient in law and in reason.
The defendants had already paid half the price of a sound article, had spent much time and money in transporting it to their mine and setting it in operation, in connection with other fixtures, and it failed to work well by reason of its improper or imperfect construction. To return it and resort to an action for the recovery of their money paid, would have been but adding to their losses. Yet a notice of its defects to the plaintiffs would have been idle, except to bind them to take it *392back, wbieh tbe defendants conld not permit, or give tbe defendants a better claim for returning it, wbicb, as we have seen, tbe plaintiffs might refuse. But tbe law required no sucb notice. Tbe remedy of tbe defendants consisted in reducing tbe plaintiffs’ demand to tbe actual value of tbe article dehv-ered. This was them legal right. Cary v. Gruman, 4 Hill, 625. And this has been done, not by rescinding tbe contract, nor by treating it as void for fraud, but by letting in an equitable defense, consistent with tbe retention of the property and tbe affirmance of tbe sale by tbe v.endees.
I am satisfied with tbe instructions of tbe court and tbe verdict of tbe jury.
Judgment affirmed, with costs.