(ss) McClung v. Kelley, 21 Iowa, 508.

Mich. 397; Hoe v. Sanborn, 21 N. Y. 552; Gaylord Mfg. Co. v Allen, 59 N. Y. 515, 518; Lewis v. Rountree, 78 N. C. 323; Holloway v. Jacoby, 120 Pa. 583; Gerst v. Jones,

32 Gratt. 518; Harris v. Waite, 51 Vt. 480; Best v. Flint, 58 Vt. 548: Hood v. Bloch,

29 W. Va. 244; Morehouse v. Comstock, 42 Wis. 626. But see Englehardt v. Clan-ton, 83 Ala. 336. Where, however, an express warranty is made, it excludes the implication of an implied warranty that the goods sold were merchantable or fit for their intended use. De Witt v. Berry, 134 U. S 306; Johnson v. Latimer, 71 Ga 470; Shepherd v. Gilroy, 46 Ia. 193; McGraw v. Fletcher, 85 Mich. 104; Cosgrove v. Ben* nett, 33, Minn. 371; Internat. Pavement Co. v. Smith, 17 Mo. App. 264.

1 In the case of an executory sale, "when defects in the goods are patent and obvious to the senses, when the purchaser has 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." Locke v. Williamson, 40 Wis. 377 - K.

G05 tender the article to the seller, and if he refuses to receive it, may sell it for the best price he can obtain without giving notice to the seller of the time and place. (st) And the rule requiring that the deficient article must be returned when the deficiency is discovered, has no application where the deficiency was discovered only by the destruction of the article in using it; as in a case of guano sold and found to be worthless. (su) If goods are sold by sample, there can be no examination of the goods, but there may be of the sample. There is, therefore, in this country, an implied warranty that the goods correspond to the sample. (t)1 A recent English case seems to

(st) Messmore v. N. Y. Shot Co., 40 N. Y. 422. Smith v. Love, 64 N. C. 439.

(su) Smith v. Love, 64 N. C. 439.

(t) Bradford v. Manley, 13 Mass. 139, is a leading case in America upon this point. Oneida Manuf. Society v. Lawrence, 4 Cowen, 440, Andrews v. Knee-land, 6 id. 354; Gallagher v. Waring, 9 Wend. 20; Beebee v. Robert, 12 id. 413; Boorman v. Jenkins, 12 id. 466; Moses v. Mead, 1 Denio, 386; Brower v. Lewis, 19 Barb. 574; Beirne v. Dord, 1 Seld. 95; Hargous v. Stone, id. 73; Borrekins v. Bevan, 3 Rawle, 37; Rose v. Beatie, 2 Nott & McC. 538; Barnard v. Kellogg, 10 Wall. 383; Hughes v Bray, 60 Cal. 284; Merriman v. Chapman, 32 Conn. 146; Webster v. Granger, 78 Ill. 230; Home Lightning Rod Co. v. Neff, 60 Ia. 138; Gill v. Kaufman, 19 Md. 157; Schnitzer v. Oriental Print Works, 114 Mass. 123; Graff v. Foster, 67 Mo. 512; Boothby v. Plaisted, 51 N. H. 436; Osborn v. Gantz, 60 N. Y. 540; West Republic Mining Co. v. Jones, 108 Pa. 55; Proctor v. Spratley, 78 Va. 254; Dayton v. Hooglund, 39 Ohio St. 671. Beirne v. Dord, 2 Sandf. 89, is an excellent case upon this point. It is there held, that in order to constitute a sale by sample, it must appear that the parties contracted solely in reference to the sample, or article exhibited, and that both mutually understood they were dealing with the sample, and with an understanding that the bulk was like it. And in the same case upon appeal, 1 Seld. 95, and in Hargous v. Stone, 1 id. 73, it is decided, that the mere exhibition of a sample is not sufficient to constitute a warranty that the bulk of the goods is of the same quality with the sample; that such exhibition is but a representation that the sample has been fairly taken from the bulk of the commodity; and that for the production of the sample to have the effect of a strict warranty, it must be shown that the parties mutually understood that there was an agreement on the part of the seller that the bulk of the commodity should correspond with the sample. - An opportunity for a personal examination of the bulk is a strong circumstance against considering the sale to have been made by sample. Hargous v. Stone, 1 Seld. 73; Beirne v. Dord, 1 id. 95. See also Waring v. Mason, 18 Wend. 434. In Williams v. Spafford, 8 Pick. 250, a leather bag of indigo was sold, which the bill of sale described as " one seroon of indigo." There was a small triangular hole in one side of the seroon, where the purchaser might draw out a specimen, and at the sale the plaintiff examined the article in this mode. The seroon proved to be mainly filled with other substances than indigo. It was held, a sale " by sample," and that there was a warranty that the bulk was of the same kind and quality with the sample. In Salisbury v. Stainer, 19 Wend. 159, several bales of hemp were sold. The purchaser was told to examine the hemp for himself. He cut open one bale, and appeared satisfied with the quality. He might have cut open every bale had he chosen to do so. It was proved that the interior of the bales consisted of tow. and of a quality of hemp very much inferior to that on the out-sides of the bales. This was held, not to be a sale by sample, and that there was no warranty that the interior should correspond with the exterior of the bales. See Dickinson v. Gay, 7 Allen, 29; Gunther v. Atwell, 19 Ind. 157

1 But the sale must be solely by sample. Day v. Raguet, 14 Minn 273. In Pennsylvania, a sale by sample is not a warranty, but a guaranty simply that the goods are like in kind and merchantable. Boyd v. Wilson, 83 Pa. 319; Selser v. Roberts, 105 hold, that if the goods do not correspond to the sample, the vendee can recover only by showing some knowledge on the part of the vendor of this want of correspondence. (u) We doubt this, because we hold that such a sale implies warranty If they do correspond, and the sample itself has a defect, even if this defect be unknown, and not discoverable by examination, there is no implied warranty against this defect, and the seller is not responsible.(v)1 If there be an express warranty, an examination *of samples is no waiver of the warranty; nor is any in- quiry or examination into the character or quality of the things sold; for a man has a right to protect himself by such inquiry, and also by a warranty. (w)2 But if the purchaser is told