By the Court,
Cole, J.The circuit court was undoubtedly *32correct in holding that the contract set out in the complaint requires that the stave bolts which should be delivered upon it must be of a good merchantable quality and suitable for the purpose for which they were intended. The contract was an ex-ecutory one, and there was an implied warranty that the bolts should be of this quality and of the requisite length, otherwise the defendants would not be obliged to accept them. This rule is well settled by the authorities ; but it is only necessary to refer to the cases of Rountree v. Getty, 2 Chandler, 28, and Fisk v. Tank, 12 Wis., 276, where the question has been fully considered by our own court.
* It appears, however, that a certain quantity of bolts were delivered and used by the defendants in stocking their mill. It is alleged by the defendants in their answer, that a portion of these bolts which were thus delivered were worthless for the purpose of manufacturing staves, by reason of being knotty, rotten, worm-eaten and of such timber as could not be made into staves, but that an assorted quantity was taken, although not such as required by the contract, rather than have their mill stop operations. They claimed that they were entitled to a deduction proportioned to the diminished value from the price agreed upon in the contract, in consequence of this defect in the bolts. The court however held, and so ruled in the progress of the trial, that the quality of the bolts taken away by the defendants could not enter into the consideration of the case, and that the defendants could not, under their answer, recover damages by way of recoupment for a breach of warranty as to their quality.
~We are unable to concur in this view of the case. It appears to us that the answer sufficiently sets up the defect in the bolts, and that evidence to show that they were of an inferior quality should have been admitted. Unless the jury should be satisfied from all the evidence that the bolts which were delivered were received and accepted by the defendants, after a suitable opportunity to inspect them, as being such bolts as *33were required by tbe contract, and were of a good merchantable quality, they might object to the payment of the contract price. The mere fact that the defendants received a portion of the bolts, and brought them to their mill and used them to beep their mill in operation, ought not, under the circumstances, to be held a waiver of the implied warranty. The bolts were to be delivered at a point distant from the defendants’ mill, and some of the defects would probably not be discovered until they were used. Besides, it is. alleged that the defendants relied on these bolts to stock their mill and keep it in operation. They could not, therefore, without great injury, return the bolts, and the fact that they did not, but kept and used them, ought not to be deemed a waiver of the right to object that the bolts were not such as the contract called for. This position is sustained by many well adjudicated cases, and we cannot see that it violates any sound, just principle or rule of law. Poulton v. Lattimore, 9 Barn. and Cress., 259 ; Street v. Blay, 2 Barn, and Adol., 456 ; King v. Paddock, 18 Johns., 141; Babcock v. Trice, 18 Ill., 420; 2d Smith’s Lead. Cases, 31 et seq. We think the court erred in not permitting the defendants to show under the answer the actual defects in the quality of the bolts which were delivered and kept by them, as a reduction of the damages from the contract price.
We likewise think there was an error in the charge of the court upon the other branch of the case, in respect to the bolts which the defendants refused to receive. The defendants asked the court to instruct the jury, among other things, that they must be satisfied from the evidence that the plaintiff had delivered the stave bolts required by the contract, suitably corded to be measured with reasonable precision, and so as not to require assorting in order to make them merchantable, and that the defendants were not required to assort and cull them. The court refused to give such an instruction, but, in the general charge, instructed the jury upon this point that the contract must have a reasonable construction; and that if a small and *34inconsiderable number of the bolts in the piles were too short or of a bad quality, the defendants would not, for that reason, have the right to refuse them, provided there were enough of the good ones to fill the contract; but that the defendants might refuse to receive the bolts if a large part of them were ■ so deficient that it would be difficult to make the necessary deduction upon the measurement.
We have already said that the contract called for good merchantable bolts suitable for the purpose for which they were intended. They were to be delivered at certain points on the Wolf and Embarrass rivers, “ one length of bolts to be counted as a cord.” It was the duty of the plaintiff to have such bolts as the contract required properly corded up at the points of delivery, and he had not discharged his duty until he had done this. The defendants were under no obligation to cull and assort the bolts, nor to receive any which did not conform to the contract. The court held that if a small or inconsiderable number of the bolts in the piles were too short or of a bad quality, the defendants would not for that reason have a right to reject the whole if there were enough of the good ones to fill the contract. According to this view the defendants were required to receive bolts of a defective quality, or be to the labor and expense of assorting and cording the bolts for measurement. The contract imposes upon them no such obligation. See Crane v. Roberts, 5 Greenl., 419; Elkins v. Parkhust, 17 Vermont, 105 ; Goss v. Turner, 21 id., 437; Clark v. Pinney, 7 Cowen, 681.
We think, for the reasons abov given, that there must be a new trial in this case.
Judgment of the circuit court reversed, and a new trial ordered.