When a seller with warranty brings an action for the price, it seems to be settled in England that a mere breach of warranty, which is not accompanied with fraud, or does not go to destroy the identity or the value of the thing sold, is not a bar to the action; (p) and the tendency of American law is in the same direction. (q)

In general, when a buyer asserts that the goods he purchased are not what they were warranted to be, or are so different from what he ordered, or from the seller's representation of them, or from the quality and value such articles should posses, as to give him a right to rescind and avoid the Bale, he must forthwith return the goods if he would exercise this right. Delay in doing so, or any act equivalent to acceptance, employment, or disposition of the goods, after he knows or should know their deficiency, if it exists, would be construed either into an admission that there was no such deficiency, or into a waiver of his right to rescind the sale because of such deficiency. (r)

(m) Chesterman v. Lamb, 2 A. & E. 129; McKenzie v. Hancock, Ry. & M. 436; Maclean v. Dunn, 4 Bing. 722, Best, C J.; Heilbutt v. Hickson, L. R. 7 C. P. 438; Messmore v. N. Y. Shot Co., 40 N. Y. 422; Pope v. Allis, 115 U. S. 363; Woodward v. Thacher, 21 Vt. 580; Buffington v Quantin, 17 Penn. St. 310.

(n) Washington, J., in Thornton v. Wynn, 12 Wheat. 193.

(o) See Carter v. Walker, 2 Rich. L. 40. This is the rule in New York. Cary v. Gruman, 4 Hill (N. Y), 625; Voorhees v. Earl, 2 Hill (N. Y.), 288; Briggs v. Hilton, 99 N. Y. 517. In Kentucky, Light-burn v. Cooper, 1 Dana, 273. In the United States courts, Thornton v. Wynn, 12 Wheat. 183; Lyon v. Bertram, 20 How. 149. In Pennsylvania, Kase v. John, 10 Watts, 107; Freyman v. Knecht, 78 Pa.

141. In Tennessee, Allen v. Anderson, 3 Humph. 581. It is the English rule. See Street v. Blay, 2 B. & Ad. 456; Gom-pertz v. Denton, 1 Cr. & M. 207; Parson v. Sexton, 4 C. B. 899; Ollivant v. Bayley, 5 Q. B. 288; Dawson v. Collis, 4 E. L. & E. 338; s. c. 10 C. B. 523; Heyworth v. Hutchinson, L. R. 2 Q. B. 447. And in action brought for the price of goods sold or services performed, the defendant may reduce the damages by showing a breach of warranty on the part of the plaintiff. Allen v. Hooker, 25 Vt. 137.

(oo) Milburn v. Belloni, 39 N. Y. 53.

(p) Parson v. Sexton, 4 C. B. 899; Dawson v. Collis, 4 E. L. & E. 338; s. c. 10 C. B. 523.

(q) Freeman v. Clute, 3 Barb. 424; West v. Cutting, 19 Vt. 536.

* In general, there is no implied warranty whatever arising from judicial sales. (s)

(r) Thus in Milner v. Tucker, 1 C. & P. 15, a person contracted to supply a chandelier sufficient to light a certain room. The purchaser kept the chandelier six months, and then returned it; he was held liable to pay for it, although it was not according to the contract. So in Cash v. Giles, 3 C. & P. 407, a threshing machine was kept several years, without complaint, but only used twice; the vendee was held liable for the price, although it was of little or no value. And in Per-cival v. Blake, 2 C. & P. 514, keeping property two months without objection was held to be an acceptance, and the purchaser was bound to pay for it, there being no fraud. See Grimaldi v. White, 4 Esp. 95; Groning v. Mendham, 1 Stark. 257; Hopkins v.. Appleby, l Stark 477; Kellogg v. Denslow, 14 Conn. 411; Gilson v. Bingham, 43 Vt. 410. Keeping a warranted article for a length of time without objection, and selling part, is evidence tending to prove that it corresponded with the warranty. Prosser v. Hooper,

1 J. B. Moore, 106. But the delay must take place after the discovery of the deficiency in the goods. (dements v. Smith's Administrators, 9 Gill, 156.

(s) The Monte Allegro, 9 Wheat. 644; Puckett v. U. S., 19 Law Rep. 18.