Miller, J.:
The defendants appeal from a judgment entered on the verdict of a jury in an action brought to .recover damages for breach of warranty. The facts are practically undisputed, and the only question requiring consideration is that raised by the defendants’ motion to dismiss the complaint, to wit: Does the warranty accompanying an executory sale of goods by sample where there are no express words of warranty survive acceptance by the' vendee if the defects complained of were discoverable upon inspection ?
While there may be no single case in this. State in which all of *875the elements embraced in said question are found, the principles which must control our decision are no longer open to discussion. The caseref Henry & Co. v. Talcott (175 N. Y. 385) is on all fours with the case at bar in respect of the manner of the sale. In that case as in this the sale was by correspondence after samples had been sent the vendee, and the order and its confirmation simply referred to the number of the sample. That case decided that the order, its confirmation and the surrounding circumstances presented a question of fact whether the parties intended the transaction to be a sale by sample or whether, the sample was intended only as a substitute for mere words 'of description. Judge Vann, speaking for the court, said that if the sale was by sample the warranty was express, “ the affirmation being made by the sample itself silently asserting the qualities of the bulk it represents,” and that the vendee had two remedies in case the goods were not equal to the sample, either to reject them or to accept and sue for damages upon the warranty. I should be content" to rest the decision of this case upon the authority of -that without further discussibn were it not for the fact that it did not appear in that case whether the defects were latent or patent, or could be discovered on inspection, evidence upon the point having been excluded by the trial court, and it may be argued from the concluding paragraph of the opinion that the court intended to leave "ojien the question respecting the effect of. acceptance in the case of patent defects; and as the learned counsel for the appellants has earnestly insisted that such warranty does not survive acceptance in the case of defects discernible on inspection and has quoted many expressions of the Court of Appeals in support of his contention, I will undertake briefly to summarize the decisions in this State leading up to the case cited supra.
The first exception to the maxim of the common law, caveat 'emptor, recognized in this State was the case of Bale by sample, and the earlier decisions were to the effect that on a sale by sample there was an implied warranty that the bulk was equal to or of the same quality as the sample. (Oneida Mfg. Society v. Lawrence, 4 Cow. 440 ; Andrews v. Kneeland, 6 id. 354; Gallagher v. Waring, 9 Wend. 20; Beebe v. Robert, 12 id. 413; Waring v. Mason, 18 id. 425 ; Sands v. Taylor, 5 Johns. 395 ; Moses v. Mead, 1 Den. 378.) The ruling of the first four eases cited is criticized in the *876case Hargous v. Stone (5 N. Y. 73). In that case'it was.held that .there, was=no-sale: by: sample. and. that if there, were, the sample was do he ¿regarded:, as. a. fair,; specimen of the. .goods- sold,, but-the opinion of tlie-.court seems - to assn me. that the doctrine only applied in cases' where there: was. no.-opportohity of inspection and .that such a warranty would ¡.not survive acceptance if .the .defects .were discoverable, but at. the--sanie ter.nuof the. court Bierne v. Dord (5 N. Y. 95). was decided..;. Inthat case , Jewbwt,. J., writing; for the-court, referred to-said-cases*. as .s.ettling-the:dawuTp,on the, subject, and ■ said that a sale by.sample -could be-made whether- an. examination was . practicable or not,. and.. (J<RDin£ERy:. J.,, .writing-'a concurring opinion^ .said/that; such a . salei amounted, to an express warranty, cit- ■ itig Beebe v. Robert (supra) and Bradford v. Manly (13 Mass. 139), . It-was early- recognized, asi the rule-that in ,ea&e?iof -an express- warranty: aeeompanying..an executed.sale; the vendee was., not bound. .to-return the..article .upon'the:..discovery- of .-¡the-.breach, and it.was assumed that .he was -not even- permitted ;toi do -so.-in ¡the absence of fraud, his remedy -being limitedi-to an-actio® on the. contract.. (Voorhees v. Earl, 2 Hill, 288; Cary v. Gruman, 4 id. 625.) Muller v. Eno (14 N. Y. 597) wa-3;á case; of; :añ;.;exec.n¿ed - sale, by sample with warranty,.that the goods; sold, .corresponded* with , the sample, and it was held .that,- whethér the.- right to.-.rqscind the sale and return the goods.existed ..or. not in .-the special case-.of a sale by sample, the claim; for damages for breach.of 'warranty, was. not. barred by com tinned possession-<>£■ tbe-property or by..-using;oi?:selling it. In .discussing - -that... question, Judge" Comstock referred, to-'-the' doubt whether,.in case of .an;¡express- warranty but in the absence of fraud or’.any-agreement for the: .ret®*® of the. goods,., the Vendee could rescind. the sale, and doubted .whether .any distinction could b.e . maintained.between ¡.such a.-case,.and an implied warranty arising from a sale, by; sample.. The.English'¡cases .cited by him-in referencé ' to .such, attempted distinctio.n all h§id that'whether the right to rescind the. contract exists, -oí' ¡has.. been lost' by too long.retention of the- property, fire vendee has-an-¡action for..breach .of warranty. That ¿case- was - followed in Rust v. Eckler (41 N. Y. 488):, ¡although the,-question,-of ¡sale by sample was not involved. In the' case of Reed v. Randall (29 N. Y. 358) it was- held .that in the , case -of executory contracts for the-sale and,delivery of personal property *877the remedy of the vendee to recover damages on the ground that the article furnished does not correspond with the article agreed to he furnished does not survive the acceptance of the property. In that, case the court divided on the proposition whether the words used amounted to a warranty, but it was held by a majority of the court that they were descriptive merely of the article agreed to be sold, the failure to deliver which constituted a breach of the contract of sale, and that by accepting the article the vendee consented that it was wlmt he purchased. It is believed that that case points out the only rational distinction that can be made-between cases in which the action for damages Will survive acceptance and .those in which the action is barred by acceptance. In other words, the question whether the parties intend that there shall be a warranty accompanying delivery and surviving acceptance turns upon the interpretation of the contract; in one' case the vendee may-rely upon the warranty; in the other' lie must ascertain whether the article delivered corresponds with the description. Upon the point decided by Reed v. Randall the following decisions turned : McCormick v. Sarson (45 N. Y. 265); Gaylord Mfg. Co. v. Allen (53 id. 515); Coplay Iron Co. v. Pope (108 id. 232); Studer v. Bleistein (115 id. 316); Pierson v. Crooks (Id. 539). In Foot v. Bentley (44 N. Y. 166) it was held that on a sale of goods by sample with warranty the warranty survived acceptance, but it seems that that case was decided upon the point that the transaction amounted to an executed sale with warranty. Day v. Pool (52 N. Y. 416) seems to be the earliest controlling authority in this State applying thé doctrine of warranties accompanying executed sales to executory contracts of sale with warranty. By a divided court precisely the same rules were held- to apply'to both cases. That case was followed in Parks v. Morris Ax & Tool Co. (54 N. Y. 586); Dounce v. Dow (57 id. 16) ; Gurney v. A. & G. W. R. Co. (58 id. 358), although in the latter case Church, Oh. J., doubted the soundness of the doctrine. In the Gurney case the question of sale by sample was incidentally discussed and it was said that the sale was not strictly by sample as -the goods were not -m esse, but that the warranty accompanying such sale was express, not implied. In each of the cases last cited supra; it -was assumed that -had the defects been patent the express warranty would not have *878survived acceptance, but that point was riot involved. Brigg v. Hilton (99 N. Y. 517), like the, case last cited supra, was not strictly a technical sale by sample as the goods were not in esse, but it had a!) the other'elements of such sale .with warranty. The defects were discoverable upon inspection, and it was held that the retention and use "of the goods after opportunity for inspection and knowledge of the defects did not bar an action on the warranty. That case was precisely like the case of Muller v. Eno (supra) except that the latter case was a, sale in prcesenti of specified articles. Brigg v. Hilton (supra), was followed in Kent v. Friedman (101 N. Y,. 616) and Zabriskie v. C. V. R. R. Co. (131 id. 72), the former being a case of an executory sale by sample with. warranty and the latter an- executory sale with warranty, referring to a known and ascertainable staridard which the court held was equivalent to a sale by sample. In the latter case the claim was made that there, was no warranty and that the.acceptance of the goods was a bar to any claim for breach of the contract, but in- the. opinion written by the learned judge who wrote in Studer v. Bleistein (supra) it was stated that there weré two answers to this contention^ viz., first, that the defects complained of were not discernible -on inspectionsecond, that, there was an express warranty, and the. cases of Coplay Iron Co., v. Pope, Studer v. Bleistein and Pierson v. Crooks (supra) .were distinguished by the fact that said cases" involved executory sales by the manufacturer of goods of a particular description, and it was said that if no warranty attended such sales, and if the' defects were discoverable upon inspection, the vendee was precluded from recovering damages by acceptance. It will be noticed -by reference to the opinions of the learned judges who wrote in each of the cases last above referred to- that each was careful to limit the' rule declared 'to cases where there.was no collateral warranty. The principle declared by these cases was applied in Carleton v. Lombard, Ayres & Co. (149 N. Y. 137) and Bierman v. City Mills Co. (151 id. 482), in each of which it was held that the implied warranty on an executory sale of goods by a manufacturer that they were merchantable and free from'latent defects caused by the process used in manufacture survived' the acceptance of the goods.' - In neither"-'case -was-- an express', warranty involved, In Smith v. Coe (170 N. Y. 162) the- dfefén'dánt..Undertook to counter*879claim damages for a breach of warranty in an action brought to recover the purchase price of the goods sold and claimed a sale by sample; the vendor was the manufacturer. Judge O’Brien, speak-, lug for the entire court, discussed the distinction between a breach of contract on the delivery of goods which did not answer the description in the executory contract, and breach of warranty collateral to the contract of sale, and pointed out that in the one case the action did not survive acceptance, while in the other it did, and that as there was no claim of latent defects which would have brought the case within the rule declared by the cases last cited supra, the defense depended entirely upon whether the sale was by sample. The ruling of that case was that the transaction was not a sale by sample, but a contract to manufacture according to orders and specifications calling for a different article than the one exhibited,
1 deduce from the foregoing that the following propositions are authoritatively settled in this State, viz.: That mere words of description in an executory contract of sale do not amount to a warranty, and that for a variance between the article delivered and the article described, the remedy is for breach of the contract of sale and does not survive acceptance of the, goods where the defects are patent; likewise that warranties which the law implies as exceptions to the rule caveat.emptor, do not survive acceptance where the defects are patent; but that in the case of express' warranties, whether the sale be executed or executory, retention of the goods after opportunity for inspection or even after knowledge of the 'defects does not bar an action for breach of warranty. This proposition being established, the ruling in Henry & Co. v. Talcott (supra) to the effect that a sale by sample amounts to an express warranty, even without express words of affirmation, is decisive of this case. The evidence presented a question of fact whether the parties intended a sale by sample; this question was presented to the jury by a charge in which the appellants must be deemed to have acquiesced because they made no requests and took no exceptions.
It follows that the judgment and order should be affirmed, with costs.
Hirsohberg,. P. J., Woodward, Jenks and Eioh, JJ., concurred.
Judgment and order affirmed, with costs.