Hemingway, J. The court declined to give two instructions asked on behalf of the appellant, and gave one of its own motion; its action in each particular is relied upon as ground for reversal.
1. It may be that the first of the instructions refused correctly stated the law on a state of case to which it was applicable; but, as the appellee was not seeking to reduce the price to be paid according to the terms of the contract, and only resisted the attempt of appellant to increase such price on account of a change in the contract, it was not a proper instruction to be given in this casé. Although Hallum knew and consented to the change, he was informed by appellant, as he says, that it would not increase the cost of the book; he is therefore not estopped by such knowledge, to decline to pay the increase claimed.
2. The second of the instructions refused presents a •question which has not been expressly adjudicated by this court.
Remedies of vendee for breach In Plant v. Condit, 22 Ark., 454, the court ruled, that for breach of warranty of soundness the vendee may his election to rescind the contract, or affirm the contract, keep the property, and when sued for the price, set up the false warranty by way of recoupment. Mr. Benjamin declares it to be the general rule, and it has been for a long time approved by the Supreme Court of the United States. Benjamin on Sales, sec. 894; Withers v. Greene, 9 How., 226. But, as he states the rule, the vendee is required to give notice to the seller only when he rejects the goods and elects to rescind the purchase, and the notice is regarded as the legal equivalent of a return of the goods, and the buyer may insist on his defense without returning or offering to return the goods, and without notice to the seller. Benj. on Sales, sec. 899.
2. Recoupment for breach of war-Acceptance of the goods, when the buyer knows that their quality is inferior to that warranted, implies an nt to take them notwithstanding the defect, and waives the right to reject them, but does not waive the right to a reduction when sued for the price. Benj. on Sales, sec. 901. In the case of Wheat v. Dotson, 12 Ark., 699, this court in discussing the right of recoupment in a similar case said, that it did not rest on the ground that the contract had been, rescinded, and that a return or an offer to return the property was not a prerequisite to the admission of the defense. It does not refer to the necessity for notice, but, as notice is the equivalent of a return, it must have been in the mind of the court as not a prerequisite to the admission of the defense. The notice required is a notice of rejection, and in the nature of things would be inapplicable where the goods are accepted, and it is only in the latter class of cases that recoupment is sought.
In most cases, the buyer, when he discovers that the quality of the goods is inferior to that warranted, would feel impelled by a sense of right and fair dealing to notify the seller of the fact, (1) that he might satisfy himself of its existence, (2) that he might cure it. But in many cases this course might be found impracticable or even impossible; and, while the failure might be a circumstance for the jury to consider in ascertaining if there was in fact a breach of warranty, it could not defeat the recoupment if the breach was proved. How far such failure should weigh with a jury would vary with the circumstances of each case, and in all cases be a matter for their determination. Benj. on Sales, sec. 900; Lewis v. Rountree, 78 N. C., 323; Brantley v. Thomas, 22 Tex., 270; Flint v. Lyon, 4 Cal., 17.
3. Warranty as to quality of articles to be manufactured. It seems to have been conceded in the court below that the contract implied a warranty of the quality of the books ; but it is contended here that no such warranty was implied. We think the concession was right, and that the contention can not be sustained. Whether the relation of the parties was that of vendor and vendee or employer and contractor, there is an implied warranty of quality. The rule, caveat emptor, had its origin in the fact that the buyer enjoyed the opportunity of inspection, and applies only to sales of specific chattels in existence, for in no other cases is the opportunity afforded. Where a manufacturer contracts to make and sell goods,'or a contractor to perform and deliver work, the opportunity of inspection is not afforded the vendee or employer, and the law implies a warranty that the article shall be merchantable and reasonably fit for the purpose for which it was intended. Curtis & Co. Mfg. Co. v. Williams, 48 Ark., 325; 2 Suth., Dam., pp. 409-410.
4. Account When the appellant delivered to Hallum a statement of his account, he approved it, but he says that he did so with the understanding that it was subject to his future examination and correction. It then became his duty to examine the statement and notify errors within a reasonable time, and his failure to do so would be deemed a ratification of his prior approval. He indicated no errors, but several weeks afterwards the instrument in suit was given and this implied a ratification. The indorsement of his approval after ratification implies a promise to pay the amount, as upon an account stated, and an account stated can only be corrected for fraud or mistake. Lawrence v. Ellsworth, 41 Ark., 502; Standard Oil Co. v. Van Etten, 107 U. S., 325.
The instruction given permitted the defendant to contest the validity of the various items of the acccount for any reason that would have been availing if there had been no statement of it, and in this there is prejudicial error.
If there was an account stated without fraud or mistake, the appellant is entitled to the amount thereof, subject to deduction for any damage Hallum may have sustained by breach of contract as to the quality of the books.
Reverse and remand for new trial.