delivered the opinion of the court.
At thе time when the. plaintiffs’ agent received the order from the defendant for the pipe, which was the considеration of the note sued on, he represented thаt it was “ good pipe” and “better than that they were getting” from another manufacturer, and that it was a “ merchаntable” article. When received, the pipe wаs placed in store until it should be sold in the regular course of business, without any close examination of its quality. To all appearances it was good pipe. Several months afterwards and after the note given for the price had been renewed with a part payment, and when the pipe came to be sold and used in building, it wаs discovered to be full of small holes, fatally defective and utterly useless for the purpose for which it was intended. The portions sold were returned to the defendаnt, an.d the whole remained in h-is hands. When the defect was discovered the defendant wrote the plaintiffs informing them of the fact, and stating that he would not pay the note, and that the pipe was subject to their order. Such was the substance of what the evidence tended to prove.
The instructions which were given for the defendant declared in effect, that these representations amounted to a warranty that the article should be a gоod merchantable pipe, and that the defendant was not precluded from making this defence by reasоn of his having received the pipe, nor by reason of his not making any offer, or 1ns failure, to re-urn it; and the plaintiffs’ instructions, embodying nearly
The evidence tended to show the pipe was defectively made, unfit for the uses for which it wаs ordered, and worthless for any purpose but old iron. Thе delay in making the discovery of its bad quality was satisfactorily explained. The plaintiffs appear to have been notified as soon as the discovery was ma.dе. That the defendant had previously renewed the notе given for the price, expressed himself satisfied with the pipe, and actually paid for it in part, cannot be considered as a waiver of his legal rights in the matter. Thе statute provides, that the proper party may prove the want or failure of the consideration, in whоle or in part, in such case —R. C. 1855, p. 1290, § 24. Nor in order to enаble the defendant to make this defence was he bound to return, or offer to return, the goods at all — Barr v. Baker,
We think the motion for a new trial was properly overruled.
Judgment affirmed.