majority">

The opinion of the court was delivered by

Royce, J.

This is an action of assumpsit to recover damages for a breach of warranty in the sale of the articles of machinery described in the plaintiff’s declaration. The only exceptions taken upon the trial were for non-compliance by the court with the requests made by the defendants, and to the charge upon the subject-matter of the requests. The first request is based in part upon the assumption that there was no evidence in the case that tended to show that there was any warranty of the machinery. While it is true that representations descriptive of the thing sold, or which may be taken as expressive of the opinion of the vendor, do not necessarily import a warranty, yet, where representations are made by the vendor, of the quality of the thing sold, or its fitness for a particular purpose, if intended as a part of the contract of sale, and the vendee makes the purchase relying upon such representations, they will in law constitute a contract of warranty. The evidence detailed in the exceptions had a tendency to estab*26lish such a contract, and it would have been error, by any ruling of the court, to have deprived the plaintiff of the benefit of it. Upon the claim made by the defendants, that there had been an acceptance of the machinery by the plaintiff, and a waiver of all defects in it, the charge was more favorable to the defendants than it should have been. Return of the property to the vendor, or notice of its defects, is never necessary, except to enable the vendee to withhold or recover back the price upon the actual disaffirmance of the contract, and thereby revesting the title in the vendor. JBut where there is a contract of warranty, the vendee is under no legal obligation to return the property, or to give notice of its defects ; he has a right of action by proving the contract and its breach, and his retention and user of the property, and neglect to give notice to the vendor of its defects, are only material upon the question of damages. The claim of the defendants that it was part of the agreement that their mechanic should set up the machine, does not seem to us to be supported by the evidence, and ail the benefit the defendants could legally claim from any unskillfulness in setting up or using the machine, was fully given them by the charge. „

Judgment affirmed.

Citation profile

How this case has been treated — in progress