The record fails to show that there was any express warranty of the quality of the apples. The letter of the plaintiffs, in which they say to the defendant that he can rely upon the very best of fruit, relates exclusively to Mew York apples, and has no application to a purchase of Michigan apples. And so the learned circuit judge ruled on the trial. There was, however, an implied warranty that the apples were merchantable, that is, that they were conformable, as to kinds, condition and quality, to that which would be understood by the trade from the term “ Michigan apples,” these being the descriptive words of the contract. 1 Parsons on Con. (5th ed.), 560.
This is the only warranty we find in the case. The words written by one of the plaintiffs at the foot of the bill rendered by them for the apples, viz.: “You will find this a very nice lot,” is not a warranty, for the reason that the contract of sale was fully made by the order for the apples and the acceptance thereof by the plaintiff, and was executed by the shipment of *630tiie apples to the defendant, before such bill was rendered. For this reason, nothing upon the face of that bill can operate to change the rights or liabilities of the respective parties under their contract.
The jury were instructed, in substance, that, unless the defendant, when he discovered the defect in the apples, notified the plaintiffs that he would not accept them, and offered to return them, the defendant must pay for them the contract price. Whether this instruction states the law correctly, is the principal question to be determined on this appeal.
It was held in Locke v. Williamson, 40 Wis., 377, that in respect to an executory contract for the sale and purchase of goods, “ when the defects in the goods are patent, and obvious to the senses, when the purchaser has a full opportunity for examination, and knows of such defects, he must, either when he receives the goods, or within what, under the circumstances, is a reasonable time thereafter, notify the seller that the goods are not accepted as fulfilling the warranty; otherwise, the defects will be deemed waived.” Subject to this rule, it is the settled law in this state that, “ in case of a warranty, express or implied, where the article purchased proves defective, or unfit for the use intended, the purchaser may, without returning or offering to return it, and without notifying the vendor of its defects, bring his action for the recovery of damages, or, if sued for the price, may set up and have such damages allowed to him by way of recoupment, from the sum stipulated to be paid.” Bonnell v. Jacobs, 36 Wis., 59, and cases cited.
In the present case, as already observed, the contract of sale was completed and executed by the shipping of the apples pursuant to the order of the defendant; and while the contract remained executory, he had no opportunity of inspection. Indeed he had no such opportunity until after he had paid the freight, and accepted a delivery of the property. Clearly, therefore, the case is not within the rule of Locke v. William*631son, but is within the rule of Bonnell v. Jacobs, and the cases there cited. In a case like this, the rule caveat vend.itor, and not cmeat emptor, governs. 1 Parsons on Con., 560. It follows that the instruction under consideration was erroneous.
The learned circuit judge seems to have considered that the requirement printed on the hill rendered for the apples, re - stricting the time within which a claim for damages might be made, is a part of the contract. Eor reasons already stated, this is not the correct view; and the instruction on that subject is also erroneous.
Eor these errors the judgment of the circuit court must be reversed, and the cause remanded for a new trial.
By the Gov/ri. — So ordered.