¶1It was no defence to an action upon the note, in the absence of proof of an express warranty, or of fraud, that the casks, at the time they were purchased, were not merchantable. ■ Unless the plaintiff knew of the x defect at the time of sale, or expressly warranted them, the purchaser and not the seller must bear the loss. ' If the plaintiff had been a cooper and had made the casks to order, the case would have been otherwise, for then there would be an implied warranty, that the article was as fit for usé "as such articles usually are. (Story on Contracts, 836, a.) And the defendant, having retained and sold them, could not be liable to pay more than the actual value. But it does not appear that this is such a case.
¶2.The judgment should be affirmed."