merits of the controversy were not disclosed, Cockrill, C. J., said: "But it is not enough to warrant the extraordinary interference of equity with a judgment at law that an accident has prevented the losing party from pressing a motion for a new trial based upon technical errors occurring at the trial, even though they may be sufficient to warrant a reversal of the judgment on appeal. A party who has obtained a judgment, after a full investigation of the controversy by a competent tribunal, will not be forced by a court of equity to submit to a new trial, unless justice imperatively demands it. It must clearly appear to the court that it would be contrary to equity and good conscience to allow the judgment to be enforced, else it declines to impose terms upon the prevailing party." Crim v. Handley, 94 U. S. 652; Harkey v. Tillman, 40 Ark. 553. It is thus seen when, by accident from unforeseen circumstances, the term of a court has lapsed, or a special adjourned term was never held, or the adjourned session could not be held, and the term closed by operation of law, so that the judgment became irrevocable at law, and the party lost the benefit of his motion, and was precluded or cut off from his right of appeal, the failure to obtain a new trial or appeal, alone, was not sufficient to warrant the interference of equity with the judgment, nor mere errors or irregularities of the court of law, but injustice or hardship must be made to appear, or some other equitable consideration, so that it would be contrary to equity and good conscience to allow the judgment to be enforced. "A judgment," says Mr. High, "regular on its face, will not be enjoined when it is not shown to be unjust or oppressive, and when it does not appear that the party asking the aid of equity against the enforcement of the judgment has a good defense to the claim upon which it was founded." High, Inj. § 126. The complainant alleges no facts, arising out of or connected with the trial, which show that any injustice has been done, or that the winning party has obtained any improper advantage, or any fraud or mistake, or any failure of justice from the trial by accident, or that he has any defense thereto, other than, if he is granted another opportunity, he will prove that the heifer is his property. His reliance for relief rests solely upon the ground that, by accident arising out of the resignation of the justice, he has been cut off or lost his right of appeal, which would have secured a trial de novo, and that he would have been able to prove what, it seems, he failed to establish to the satisfaction of the jury at the first trial. In such case it is plain that the jurisdiction of equity cannot be imperatively demanded; the accident and the injustice of the judgment must concur and appear, or its jurisdiction will be denied.

CONFLICT OF LAWS-LEX LOCI-CONTRACT OF INDORSEMENT.-In Baxter Nat. Bank v. Talbot, 28 N. E. Rep. 163, the Supreme Judicial Court of Massachusetts hold that where, in an action by the payee against an indorser of certain notes, it appeared that the indorsement was made pursuant to a contract entered into in another State, the lex loci contractus must govern, and it is error to exclude evidence of such contract, when the indorsement itself is not absolute under the laws of

the State where it was made. Morton, J., says:

The plaintiff seeks to recover in this suit from the defendant as indorser on five promissory notes, and to reach and apply in payment of them the interest of the defendant in a partnership of which he is a member. The notes were made by the Esperanza Marble Company, and were indorsed in blank by it and the defendant and two other parties, and were all made payable at what we assume to be the plaintiff bank in Rutland, Vt. This suit is against the defendant alone. The respondent in his answer claims that his indorsement was made and took effect as a contract in the State of Vermont, and that by the law of that State his obligation depended, as between the plaintiff and himself or any other party taking the notes with notice, upon the understanding or agreement between the bank and himself in regard to said indorsement, and that his indorsement was in fact made subject to an oral agreement with the plaintiff set out in his answer, which he has fully prepared. At the time the respondent offered testimony tending to prove the alleged oral agreement. The court received it de bene, and at the conclusion of all the testimony ruled that the lex fori and not the lex loci contractus must govern the case; that the oral agreement and the evidence tending to prove it were inadmissible and immaterial, and could not be considered by the jury. The respondent excepted to this ruling, and the question before us is as to its correctness.

The testimony introduced by the plaintiff tended to show the following, among other, facts in regard to his indorsement of the notes in suit. In January, 1887, the plaintiff bank had overdue notes which it had discounted for the Esperanza Marble Company of New York, but which had its usual place of business in Rutland. Part of these notes were indorsed by respondent. The plaintiff also held a mortgage on certain property in New York, as collateral to these notes, but found it inconvenient to attend to its collection, and requested the respondent to attend to it in its behalf; and that it was orally agreed between the respondent and the plaintiff that the mortgage should be assigned to the respondent, and he should collect the same, and pay over the proceeds to the bank. It was also orally agreed that the notes held by the bank against the marble company should be surrendered to it, and new notes given by it therefor, which should be indorsed by the respondent and the other two parties whose names are on the notes in suit and that the notes should be renewed from time to time as they fell due, the renewals being indorsed by the same parties, until the total amount collectible on the mortgage had been received and paid over by the respondent to the plaintiff bank. It was further orally agreed that the respondent should not be liable on his indorsements beyond the amount which he might receive on account of the mortgage, and fail to pay over to the plaintiff, and that he should be held liable on his indorsements only to secure the performance of his agreement to collect and pay over on account of the mortgage. The agreement thus made was carried out. The overdue notes of the marble company were surrendered to it, and new notes indorsed by the respondent and the other parties taken in their stead. These have been renewed from time to time, the renewals being indorsed by the same parties, and the notes in suit are renewals of said original notes. The notes have all been made payable to the plaintiff bank in Rutland, and the respondent's indorsement upon all of them was made

and took effect as a contract made in Vermont. The mortgage was assigned to the respondent, and he has paid over to the plaintiff bank all money which he has collected under it. At the trial the jury found, by direction of the court, that the notes in suit were made payable in the State of Vermont, and that respondent's indorsement was made and took effect as a contract in that State.

It is apparent that, if the lex fori is to govern, the respondent cannot avail himself of the oral agreement entered into between the plaintiff and himself. Adams v. Wilson, 12 Metc. (Mass.) 138; Wright v. Morse, 9 Gray, 337. We do not think, however, that it should govern. It is clear that, in all that relates to the contract itself, to its nature and validity and interpretation, the law of the place where it is made governs. Bank v. Wood, 142 Mass. 563, 8 N. E. Rep. 753: Milliken v. Pratt, 125 Mass. 374; Carnegie v. Morrison, 2 Metc. (Mass.) 381; Nichols v. Mase, 94 N. Y. 160; Buzzell v. Cummings, 61 Vt. 213, 18 Atl. Rep. 93; Forepaugh v. Railroad Co., 128 Pa. St. 218, 18 Atl. Rep. 503; Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U. S. 453, 9 Sup. Ct. Rep. 469; Fonseca v. Steam-ship Co., 153 Mass.-, 27 N. E. Rep. 665. And the law of the place where the contract is made is, without any express assent or agreement of the parties, incorporated into and forms a part of the contract. Their contract is presumed to be made with reference to the law of the place where it is entered into, unless it appears that it was entered into with reference to the law of some other State or country. Bank v. Hume, 128 U. S. 207, 9 Sup. Ct. Rep. 41; Chapin v. Dobson, 78 N. Y. 74. A contract valid in the State or country where it is made will be enforced, even in a State or country where it would be invalid, provided it be not there contrary to public policy or morals. Parsons v. Trask, 7 Gray, 473; Milliken v. Pratt, supra; Forepaugh v. Railroad Co., supra. On the other hand, it is equally clear that, in all that relates to the procedure for enforcing the contract, the law of the former controls. Bank v. Wood, supra; Carnegie v. Morrison, supra; Hoadley v. Transportation Co., 115 Mass. 304. Thus the form in which and the parties by or against whom the action shall be brought, the competency of the evidence offered to establish the alleged cause of action, whether the cause of action is barred by the statutes of limitation, whether a party can maintain an action in his own name or is obliged to use that of another, whether a contract is negotiable, and whether it is to be sued on as a specialty or a simple contract, with many other similar things, have been held to be matters affecting the remedy, and therefore be governed by the lex loci. Pearsall v. Dwight, 2 Mass. 84; Orr v. Amory, 11 Mass. 25; Foss v. Nutting, 14 Gray, 484; Leach v. Greene, 116 Mass. 534; Drake v. Rice, 130 Mass. 410; Hoadley v. Transportation Co., 115 Mass. 304; McClees v. Burt, 5 Metc. (Mass.) 198; Richardson v. Railroad Co., 98 Mass. 85; Downer v. Chesebrough, 36 Conn. 39; Leroux v. Brown, 12 C. B. 801; Stoneman v. Railway Co., 52 N. Y. 429.

It is sometimes difficult to decide whether the question raised in a given case relates to the nature and validity of the contract or to the remedy upon it. We think in the present instance it relates to the former, and not to the latter. The respondent claimed that under the laws of Vermont his obligation growing out of his indorsements was not an absolute one, but depended, as between the parties, upon the oral agreement or understanding, if any, between them at the time when he placed his name,upon the notes. The respondent further claimed that when he placed

his name upon the notes he did so under an oral agreement with the plaintiff bank by the terms of which his indorsement was only to be regarded as security for the payment by him to the bank of the money that he might collect on the mortgage which was assigned to him. Assuming, as we must for the purposes of this case, that the law of Vermont was as stated by the respondent, the testimony offered by him bore clearly upon the nature and validity of the contract between himself and the bank. The respondent could not show what the agreement was in any other way than that in which he offered to show it. It was not an attempt on his part to vary a written contract, because under the laws of Vermont, the indorsement did not of itself constitute an absolute contract, but, in order to determine what the contract was, it was necessary to ascertain what agreements or undertakings were entered into at the time of and in connection with and as part of the indorsement. If there were none, then the contract between the plaintiff and respondent was the usual contract growing out of a blank indorsement. If there were such undertakings or agreements, then they entered into and formed a part of the contract of indorsement. The evidence was rejected, not because it would have been incompetent to prove the facts which it was offered to establish had the contract been valid in this State, but on the ground that it related to a matter affecting the remedy. Back of all questions of remedy, however, lies the question of the contract itself, and we think the evidence should have been allowed as bearing upon that fact. See Williams v. Wade, 1 Metc. (Mass.) 82; Powers v. Lynch, 3 Mass. 77; Trimbey v. Vignier, 1 Bing. N. C. 151; Burrows v. Jemino, 2 Strange, 733; Bank v. Wood, supra; Wattson v. Campbell, 38 N. Y. 153; Dunn v. Welsh, 62 Ga. 241; Forepaugh v. Railroad Co., supra.

ANIMALS-VICIOUS DOG-INJURIES NEGLIGENCE.-In Melsheimer v. Sullivan, 27 Pac. Rep. 17, decided by the Court of Appeals of Colorado, it appeared that defendant kept a dog, admitted to be ferocious and accustomed to bite, tied in an alley by a chain some six or eight feet long. The alley, though private, was easy of access at one end, and frequented by defendant's employees and others, and plaintiff, a policeman in pursuit of a suspicious character, entered this alley, and, approaching the dog without seeing it, was It was held that deseriously bitten by it. It fendant is liable, it being negligence for him to keep a dog of such a disposition in such a manner, and plaintiff being rightfully on the premises when he was injured. Richmond, P. J., says:

This question has received the attention of some of the ablest judges in this country and in England, and a careful review of the cases leads us to the conclusion that the gist of action is in the keeping of the animal after knowledge of its mischievous disposition. In Marble v. Ross, 124 Mass. 44, Morton, J., lays down this rule: "The law imposes a stringent responsibility upon a man who knowingly keeps a vicious and dangerous animal. He is liable to any person who, with

out contributory negligence on his part, is injured by such animal, and he cannot exonerate himself by showing that he used care in keeping and restraining the animal He takes the risk of being able to keep him safely so that he shall not injure others. The owner's negligence is in keeping the animal knowing that it is dangerous." In Muller v. McKesson, 73 N. Y. 196, the rule is announced that, "in an action against the owner of a ferocious dog or other animal, for injuries inflicted by it, the gravamen of the action is the keeping of the animal with knowledge of its propensities; and, as to the latter, proof that the animal is of a savage and ferocious nature is equivalent to express notice." "The owner is bound to keep the animal secure at his peril, and, if it does mischief, negligence is presumed. This presumption cannot be rebutted by proof of care on the part of the owner in keeping or restraining it, and he is absolutefy liable, unless relieved by proof of some act or omission on the part of the person injured." In Partlow v. Haggarty, 35 Ind. 178, it was held that "whoever keeps an animal accustomed to attack or bite mankind, with knowledge of its dangerous propensities, is prima facie liable to an action for damages at the suit of any person attacked or injured by the animal, without proof of any negligence or fault in the securing or taking care of it. The gist of the action is the keeping of the animal after knowledge of its mischievous disposition." In Sherfey v. Bartley, 4 Sneed, 58, it is said: "The defendant knew his dog was vicious, and disposed to attack and bite persons, and was bound to have so confined him as to prevent him from doing mischief." Brooks v. Taylor, 95 Mich. 208, 31 N. W. Rep. 837, was an action for injuries inflicted by a bull, and it was held that "the neg. ligence in such a case consists in keeping such an animal after notice of its dangerous habits; and whoever keeps an animal accustomed to attack and injure mankind is prima facie liable in an action on the case at the suit of any person injured without any averment of negligence or default in securing and taking care of the animal. If in such a case it is shown, as a matter of defense, that the plaintiff willfully provoked the animal, or was grossly negligent in going near it, with knowledge of its vicious habits, he cannot recover." In Earl v. Van Alstine, 8 Barb. 630, after reviewing the various authorities, Selden, J., says: "The authorities seem to point to the following conclusions: First, one who owns or keeps an animal of any kind becomes liable for any injury the animal may do, only on the ground of some actual or presumed negligence on his part; second, it is essential to the proof of negligence, and sufficient evidence thereof, that the owner be shown to have had notice of the propensity of an animal to do mischief; third, proof that the animal is of a savage and ferocious nature is equivalent to proof of express notice." Pickering v. Orange, 1 Scam. 492; Brice v. Bauer, 108 N. Y. 428, 15 N. E. Rep. 695. The principle here contended for by appellant is most thoroughly covered in Laverone v. Mangianti, 41 Cal. 138. In that case Rhodes, C. J., delivering the opinion of the court, said: "It is insisted, on behalf of the defendants, that a person may lawfully keep a ferocious dog-one that is accustomed to bite mankind. That position may be conceded, and it may also be conceded that he has the same right to keep a tiger. The danger to mankind and the injury, if any is suffered, comes from the same source-the ferocity of the animal. In determining the responsibility of the keeper for an injury inflicted by either animal, the only difference I can see between the two cases is that, in the case of an injury caused by a dog, the knowledge of the keeper that the dog was ferocious must be alleged

and proven, for all dogs are not ferocious, while in the case of a tiger, such knowledge will be presumed from the nature of the animal." The circumstances in that case were that "the dog was chained under the steps leading to the defendant's house in such a manner that be could not reach any one ascending the steps; that the plaintiff, in entering the house upon a lawful business, was ascending the steps, when one of the steps, which was loose, slipped from its position, and the plaintiff's leg went through the opening, when it was seized and bitten by the dog under the steps." This is a much stronger case for the defendant than the case at bar, for here, in an alley frequented by the employees of the defendant and by other persons, as testified to by Downing an alley easy of access at one end-this dog was kept chained, but so chained that it was capable of inflicting an injury, and did inflict an injury, and its disposition to inflict such an injury was well known to the defendant. One of the best-considered cases is the case of Johnson v. Patterson, 14 Conn. 1, wherein this language is used: "A man may not, in this country, use dangerous or unnecessary instruments for the protection of his property against trespassers. Such instruments may be used in England, but the principles on which their decisions purport to rest are not sustainable or applicable here. The true principles of the common law are recognized here, and a man may use that force which is necessary to protect his property, and no more; and he may keep and use such instruments and no other, as the same necessary degree of force will justify. A dog is an instrument for protection. A ferocious one is a dangerous instrument, and the keeping of him on the premises to protect them against trespassers is unlawful, upon the same principle that setting spring guns or concealed spears or placing poisonous food is unlawful." This case is followed and approved by the Supreme Court of Connecticut in Woolf v. Chalker, 31 Conn. 121. In the particular case at bar it is admitted that the dog was vicious-accustomed to bite. We must, to use the language of the court in Woolf v. Chalker, supra, say that "the defendant had no right to keep such a dog for any purpose, unless in an inclosure or building in the night season, and cautiously, as a protection against criminal wrong-doers." Certainly he could not keep him on his premises in the day-time in such a manner that a person, by accident, mistake, or a voluntary or involuntary trespass, might be exposed to his fury and be injured. In this case, if the plaintiff was a trespasser at all, he was so unintentionally, involuntarily, and by mistake."

SALE-WARRANTY-ACCEPTANCE- WAIVER -DAMAGES.-Morse v. Moore, 22 Atl. Rep. 362, decided by the Supreme Judicial Court of Maine, is a well considered case upon the subject of the effect of acceptance of goods sold upon a warranty. It is held that where a seller contracts to deliver at a certain time and place good, clear, merchantable ice, it is a warranty, or a condition precedent of the nature and effect of warranty, that the ice afterwards delivered is of the kind and quality described in the contract. The warranty survives acceptance. The vendee by accepting the ice is not precluded, in an action by

the vendor for the contract price, .from setting up a breach of the warranty or condition, in partial or total defense of the action. The fact of acceptance by the vendee may be evidence tending to show complete performance of the contract by the vendor, or to show a waiver of more exact performance, the force and effect of the fact as evidence depending upon the circumstances peculiar to each case. The doctrine that, in an executory contract for the sale of goods, an acceptance by the vendee is a waiver of deficient performance by the vendor, applies only where the deficiency of performance is formal, rather than essential, such as may relate to the time, place, or manner of delivery, or affect the taste and fancy of the purchaser merely, or consist of some omission that produces no substantial loss or injury. A vendor delivered under a contract to sell clear, merchantable ice, deliverable at a seaport in Maine, two cargoes of ice, to be shipped to Richmond, Va., which were taken at the place of delivery by vessels procured by the vendee, who did not inspect the ice at the place of shipment, although there was sufficient opportunity to do so. It was held that, in an action for the contract price, the vendee can set up the vendor's failure to deliver as good ice as the contract called for, in reduction of the damages recoverable. Peters, C. J., says:

Executory and executed contracts are very much alike in the elements that enter into them. There are executory steps in all executed contracts. A bargain precedes the sale. If there be a warranty, that is usually first a part of the bargain, and afterwards of the sale.

So is an executory contract the warranty is part of the agreement of sale, and at delivery a part of the sale. Many contracts commonly spoken of as executed contracts are really wholly or partially executory. All orders for goods, whether for present or future delivery, are of an executory nature. All sales by sample are such. The author of Smith's Leading Cases (8th Ed. vol. I., pt. 1, p. 339) says in discussing this distinction: "Where the vendor agrees to sell goods of a certain kind, without designating or referring to any specific chattel, the contract is essentially executory, whether it purports to be a present transfer or a mere undertaking to deliver at a future period, and the right of property does not pass until the merchandise is delivered to or set apart for the purchaser." Every contract is executory on the one side or the other until the party has done what he has agreed to do.

The fact of acceptance, however, as a matter of evidence, may have great weight on the question of satisfactory or sufficient performance. In the first place, it raises considerable presumption that the article delivered actually corresponded with the agreement. In the next place, it is some evidence of a waiver or any defect of quality,

even if the article did not so correspond; evidence of more or less force according to the circumstances of the case. If the goods be accepted without objection at the time or within a reasonable time afterwards, the evidence of waiver, unless explained, might be considered conclusive. But if, on the other hand, objection is made at the time, and the vendor notified of the defects, and the defects are material, the inference of waiver would be altogether repelled. But acceptance accompanied by silence is not necessarily a waiver. The law permits explanation, and seeks to know the circumstances which induced acceptance. It might be that the buyer was not competent to act upon his own judgment, or had no opportunity to do so, or declined to do so as a matter of expediency, placing his dependence mainly, as he has a right to do, upon the warranty of the seller. Upon this question the facts are generally for the jury, under the direction of the

court.

The law of waiver more commonly applies to things that are not essential to a substantial execution of the contract; often such as relate to the time, place, or manner of performance, or that affect merely the taste or fancy, perhaps, and are such departures from literal performance as do not bring loss or injury upon the purchaser. Baldwin v. Farnsworth, 10 Me. 414; Lamb v. Barnard, 16 Me. 364. We think the rule invoked by the defendant a just one. Speaking generally, it is the safer rule for both buyer and seller. The opposite rule imposes on either of them very great responsibility and risk. It might be ruinous to a vendee, who is in urgent need of an article, not to accept it, although even much inferior in quality to the description contained in the contract. Certainly it should not be con sidered a hardship to seller to require of him a compliance with his contract, or damages for his noncompliance.

The present case illustrates the justness of the rule, if the facts are proved as the defendant alleges them. The plaintiffs agreed to deliver ice, which they warranted should be good, clear, and merchantable. Two cargoes were loaded for shipment to a southern port. Defendant furnished the vessels, though they were probably chartered by the plaintiffs on the defendant's account. There is nothing in the charge of the judge, in the exceptions, or on briefs of counsel, intimating that the defendant ever saw the ice, either by agent or personally, until it arrived in Virginia, or that he was notified to be present, or knew of the delivery at the time of it. It would seem to be a rather stringent construction of the contract that the defendant must watch the loading of the cargoes, upon the penalty, if he failed to do so, of having to pay full price for whatever defective ice might be delivered behind his back, after he had taken for his protection, and paying for it in the consideration of the contract, an agreement of warranty in such positive terms. Still it may be that the plaintiffs could legally refuse to deliver the ice unless the defendant after notice should be present to receive it. The cargoes, after reasonable passages, arrived in a very unmerchantable condition. There was no lack of objection or protest from the defendant. He wrote repeatedly, and telegraphed the plaintiffs, expressing his disappointment and asking their advice as to the disposition of the ice. But no satisfactory answer What should he do? There was no possibility of reshipment, nor could the ice be preserved in that climate without the protection that his own ice-houses would afford for such purpose. Storage in any ordinary manner could not possibly save the property. He stored the ice, and sold it by enterprising expedients as rapidly as possible. He alleges that it was

came.

late spring ice, of poor texture, and in proximately worthless condition when shipped from Maine. If that can be shown by witnesses and in court at the home of the plaintiffs, it would seem to be an injustice if the defendant is not permitted to make the defense. Mr. Benjamin, (Benj. Sales, 3d Amer. Ed. p. 888,) in allusion to the buyer's remedies after receiving possession of the goods, says he has three remedies against the seller for breach of the warranty of quality: First, the right to reject the goods if the property in them has not passed to him; second, a cross-action for damages for the breach; third, the right to plead the breach in defense to an action by the vender, so as to diminish the price. These remedies are mentioned without any distinction between kinds of sales. The propositions are general, without any intimation that the procedure does not apply to warranties in executory sales. In the text, such, a distinction is not even noticed. In the notes to the text, however, it is remarked by the American editor that there are New York decisions inconsistent with the rule stated in the text. The first of these remedies-that of rejecting the goods-seems especially applicable to executory and inapplicable to executed sales, because it precedes acceptance, while in executed sales there has been acceptance, and the title has passed. It is only in executory contracts and contracts that are merely prima facie executed that the title has not passed.

Mr. Benjamin states further that the buyer's remedies are not dependent on his return of the goods, nor is he bound to give notice to the vendor; "but," he adds, "a failure to return the goods or complain of the quality raises a strong presumption that the complaint of defective quality is not well founded." Prof. Parsons, in the text and notes of his work on Contracts, lays down the same legal propositions that Mr. Benjamin does, making not a word of allusion to there being any difference in the application of them between sales executed and sales executory. He also states that if the buyer accepts goods inferior to such as are stipulated for, his continued possession without complaint will be a presumption against him on the question of damages. Pars. Cont. (6th Ed.) *591, and notes.

Mr. Smith, in Leading Cases, in notes to the case of Chandelor v. Lopus (8th Ed., vol. 1, pt. 1, p. 294), discusses and fully indorses the same rules, as deducible from the authorities, and he and the editors in the last American edition of that work cite and compare a great many of the decided cases on the subjects, and they give no recognition to a distinction between executed and executory contracts in the application of such remedies. We quote a few passages from their com. ments: "When specific property is referred to, still, if the reference be through the medium of a sample, the contract will be so far executory as to fail of effect unless the bulk of the commodity corresponds with the sample." "Nor will his [buyer's] right to indemnity or compensatior necessarily end on his acceptance and use of the goods with full knowledge of the defect, but he will be entitled to bring suit on the contract, and receive damages for the breach of the implied engagement that the bulk of the commodity should correspond with the sample exhibited at the time of the sale." In the case at bar there was an ideal or descriptive sample-a description equivalent to the exhibition of a sample. There can be no doubt that, if the vendee may bring an action of his own on the contract, he can as well defend against an action brought upon the contract by the vendor. "The right of the vendee to rely on the breach of warranty, or a failure to comply with the terms of an executory contract, as a defense to an action for the purchase money may now be regarded as

established in England and in most of the courts in this country." "The course of decision at the present day tends towards the position that a partial failure of consideration may be given in evidence in mitigation of damages, even when the original contract remains in full force, and the suit is expressly or impliedly founded upon it." "In the case of Withers v. Greene, 9 How. 213, the Supreme Court of the United States receded from the ground taken in Thornton v. Wynn, 12 Wheat. 183, by holding that a partial failure of consideration, growing out of fraud or breach of warranty, may be set up as a defense to an action brought by the vendor. The same rule applies to sales under an executory contract or by sample, and the buyer may rely on the deficiency of value resulting from the failure of the property sold to correspond with the terms of the contract as a reason why he should not be compelled to pay the price in full. Mondel v. Steel, 8 Mees. & W. 858; Babcock v. Trice, 18 Ill. 420; Dailey v. Green, 15 Pa. St. 118." We are unable to find in the English cases much support for any discrimination in the application of the above doctrine between sales executed and sales executory, although very many of the modern English cases arise out of sample sales and other contracts of an executory nature. The principal support for it is found in some of the New York cases and in those of a few other States that have followed the lead of the New York court in this respect. There are cases which hold to a modification of some of these forms of remedy, having no bearing, however, on the decision of the present case. Some courts have held that a rejection or rescission is not allowable if the goods tendered are of the kind or species contracted for, even though the quality be inferior; but in this State the doctrine of rescission in cases of warranty has been fully established. Marston v. Knight, 29 Me. 341. In a few cases there is a leaning towards the doctrine that an acceptance becomes a waiver after a long-continued acquiescence on the part of the vendee. 1 Smith, Lead. Cas. (8th Ed.) part 1, pp. 324, 326, 360, 362, et seq.

It is noticeable that in the more modern English cases the courts have preferred to regard executory contracts as based upon a condition precedent, rather thar upon warranty. No essential difference of remedy follows from it, though a different style of pleading may be apposite. Instead of a breach of warranty and a suit upon warranty, it becomes, on the new idea, a failure to perform a condition precedent and a suit on the contract. In leading cases, before cited, the commentator expresses the theory in an alternative way in these words: "The right of a vendee to rely on a breach of a mere warranty, or a failure to comply with the terms of an executory contract, as a defense to an action for the purchase money, may now be regarded as established in England, and in most of the courts in this country." But the editor at the same time says (page 334) that "such cases have generally proceeded on the ground of an express or implied warranty. See, also, in 2 Smith Lead. Cas. pt. 1, the discussion under case of Cutter v. Powell, at pages 18, 20, 22, et seq. Mr. Benjamin inclines to the view taken in the English cases, quoting Lord Abinger as depreciating the prevalent habit of treating a condition precedent as a warranty. Others writers incline favorably towards the views of Lord Abinger as expressed by him in the case of Chanter v. Hopkins, 4 Mees. &W. 399, although admitting that the prevaling theory continues the other way.