¶1I concur in a reversal of the judgment appealed from upon the ground first stated and reviewed in the opinion-of Mr. Justice, Williams, namely, that it was error to receive evidence upon the trial of alleged defects in the plant supplied by defendant other than those mentioned in the notice of February 13, 1888.
¶2Defendant does not question that if the plant was not in accordance with the agreement and, therefore, defective, plaintiffs’ testator was entitled to either of two remedies. He might insist upon the relief specifically provided for in the agreement that defendant should' take out the machinery and return the purchase price thereof, or he might resort under general principles of law to an action for breach of warranty.
¶3Plaintiffs’ testator by his conduct, and plaintiffs by their argument upon this appeal, seem to concede that as a basis for the first manner of relief it was necessary to serve a notice specifying defects and calling upon defendant for fulfillment of his obligations to return the purchase money. Upon the other hand, .it was not necessary as a prerequisite to an action for breach of warranty to serve such a notice. Under these circumstances, the question is whether in this action .for breach of warranty plaintiffs are limited to an assertion of the defects specified in the notice which- their testator did elect to serve.
¶4Various lines of cases, of which many have been cited, are familiar, holding that a person at the time stating certain reasons for his conduct is thereafter limited to such reasons so stated as a subsequent justification for such conduct. Familiar illustrations of such cases are those of a vendee refusing to accept goods tendered to him in pursuance of a contract; of a person refusing to accept atender of money or of a deed; of a person refusing to perform some contract obligation. While the principle confining such a person in *513subsequent, litigation to the reasons stated by him at the time sometimes is said to be based upon the rule of waiver and at others upon the rule of estoppel, the element of estoppel is frequently, at least, involved. The vendor of the goods or the person making tender or demanding fulfillment of a contract obligation has a right to rely upon the reasons given by the opposite side for his refusal to act and by such reasons to govern his conduct in deciding what he will do.
¶5While these cases, which upon the theory of waiver or estoppel forbid a person subsequently to change or add to his reasons and grounds of action, most frequently arise where a person is making an excuse for not meeting some obligation of the kind mentioned then present, I see no reason why the principles of them should not be applicable to the case at bar.
¶6If the plant supplied by defendant was in fact defective, he must be assumed to have known that plaintiffs’ testator had a right to invoke against him either of the .forms of relief already referred to. The vendee might compel him to take out the plant and return the purchase money or he might subject him to what has proved to be the harsher form of relief of recovering in effect a large proportion of the purchase price while at the same time he retained and treated as valueless a large proportion of the plant. If the plant was in truth defective, defendant might very well prefer to refund the p.urchase price and get back the machinery, which was expensive, and which, though inefficient in the Rochevot brewery, might be of use and value elsewhere, rather than to subject himself to a litigation in the form of an action for breach of warranty wherein the vendee would recover what was equivalent to the purchase price of the machinery and defendant would not recover his pipes and tanks. When the vendee served upon defendant the notice in question, he placed before the latter the necessity of deciding under all these considerations what he would do; whether he would refund the purchase price and secure the return of his plant, or whether he would subject himself to the liability and expense of litigation and the possibility, quite thoroughly realized in the present result of this action, of losing a large proportion both of the purchase money and of his machinery. The notice of plaintiffs’ testator called upon *514defendant to take action of some kind. In deciding what that action should be, I think that defendant had a right to rely upon the terms of the notice and that plaintiffs are estopped from now alleging other defects which, if then specified, might have led defendant to take another or different course. The notice was prepared with care and deliberation, and after a full opportunity to inspect and examine the machinery and to test its results by the requirements of the contract, and it seems to me that there is no hardship or injustice in holding that defendant had a right to assume that it stated all of the defects claimed' to exist and to base his decision upon, and measure his conduct by such statement.
¶7It does not seem to me that plaintiffs are relieved from the application of such a rule because, as stated, there was no original necessity for serving such a notice as this as a basis for this action. When the demand and notice were served upon him defendant was compelled to decide whether he should comply therewith or whether he should subject himself to all of the liabilities which might flow from a refusal so to do, and of which the possibility of this action with its attendant results was one. I think as matter of law we must assume that if the vendee had stated in his notice all of the defects urged upon the trial the defendant might have been unwilling to subject, himself to this litigation and the disastrous results to him which have flowed therefrom, and that the testator by the notice having influenced him, is now estopped from taking a different position.
¶8The argument advanced by the learned counsel for the respondents, that here was an express warranty which survived and was not waived by acceptance, dóes not seem to be applicable to this question. The principles and decisions invoked by him treat of the question of a waiver of defects by mere acceptance of goods and hold that such waiver does not prevail in the case of express warranty. That is an entirely different and distinct question from that involved in this case.
¶9Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, upon questidns of. law only,, the facts having been examined and no error found therein.