Christian v. Knight & Co.

Atkinson, J. 1. Where a seller of clothing exhibits to a customer a number of suits of clothes as samples, and stipulates to sell others as good in quality, such stipulation amounts to an express warranty that the clothing sold and to be delivered will be of as good quality as the samples exhibited. • ‘2. Where such goods aré sold under an express warranty as to quality, the buyer is not bound to inspect before acceptance; but if, upon receipt of the goods, he does inspect, and discovers defects before acceptance, it is his duty to reject them. If, after knowledge of the defects, he retains the goods and deals with them as his own, such conduct will amount to an acceptance and will be a waiver of the defects so discovered. Under such circumstances, any defects so discovered can not be pleaded in abatement of the purchase-price. Carolina Portland Cement Co. v. Turpin, 126 Ca. 677, and cit. 3. Applying the principles laid down in the preceding notes to the facts as they appear in the record, the evidence demanded a finding in favor of the plaintiff, and any error that may have been committed in the instructions of the judge would not require a reversal of the judgment. Judgment affirmed. All the Justices concur.