¶1— Where the contract for the sale and delivery of goods, wares and merchandise is executory and there is no express warranty, the vendee must examine the article furnished as soon after he has accepted the same as practicable, and in case it does not correspond with the contract he must immediately return or offer to return it to the vendor, or at least notify him of the defects; and if he fails to do so he will be presumed to have accepted it in full performance of the contract, and waives any claim for damages he may have by reason of the breach (Reed agt. Randall, 29 N. Y., 358).
¶2In the case at bar the statements which the defendant claims were made by the plaintiff were merely descriptive of the quality of the article he proposed to sell, and cannot fairly be considered as amounting to a warranty. It was, therefore, incumbent on the defendant to inspect the butter and ascertain its quality or condition as soon after receiving the same as opportunity offered. This he failed to do. On the contrary it appears, from his own testimony, that he kept it some ten days before he examined it, and that he subsequently used a great portion of it in his business before he notified the plaintiff and offered to return the residue. Under these *135circumstances the defendant could not recoup or counterclaim the damages which he claims to have sustained 'by reason of the inferior quality of the butter.
¶3But even if an express warranty could be predicated upon the representations made respecting the butter, it would, in this case, only go to the extent that the article itself was of a particular kind or quality, and not that it was fit and suitable for the use to which the defendant applied it (Milburn agt. Belloni 34 Barb., 607). There is nothing in the evidence to show that the defendant as much as informed the plaintiff that the butter was to be used for a special purpose. The only damages that the defendant could therefore, in any event, recoup, would be the difference between the value of the article as it was and its valué if it had been as represented, and on this point no evidence was given.
¶4The judgment should be affirmed, with costs.
¶5Daly, Ch. J., and J. F. Daly, J., concurred.