Patent Defects.-A general warranty does not usually extend to defects apparent on simple inspection, requiring no skill to discover them, nor to defects known to the buyer, but the warranty may be so expressed as to protect the buyer against consequences growing out of a patent defect.1 Executory Contracts.-Acceptance of property, manufactured under an executory contract, by the vendee, after a full and fair opportunity of inspection, estops him, in the absence of fraud, from thereafter raising any objections as to visible defects and imperfections, whether discovered or not, unless such delivery and acceptance were accompanied by some warranty of quality manifestly intended to survive acceptance.2 Dearborn, 77 Me. 457, 458; Hoult v. Baldwin, 67 Cal. 610, and note 443; Cunningham. Hall, 4 Allen (Mass.) 268, 274; Randall v. Newson, L. R., 2 Q. B. 102, 109; s. c., 19 Eng. Rep. 243, 249. Consult also article on Implied Warranty of Fitness of a Chattel, 17 Am. L. Rev. 423 (1883). Rescission on Discovery of.-A person who purchases by sample, a chattel intended for a particular purpose, known to the seller, may, even after acceptance, rescind the sale on discovering a latent defect. Hudson v. Roos, 40 N. W. Rep. (Mich.) 467. 1. Storrs v. Emerson, 72 Iowa 390, 391; holding, accordingly, that an express warranty against all unsoundness protected the buyer of a span of horses against defects arising from diseases of the kidneys or spine, where these defects were not apparent to the eye, although symptoms of the disease were apparent, if they were not known to the buyer as such. Concerning warranty in its relation to patent defects, see further Kenner v. Harding, 85 Ill. 264; s. c., 28 Am. Rep. 615; Tabor v. Peters, 74 Ala. 90; s. c., 49 Am. Rep. 804; Mickley v. Parsons, 66 Iowa 63; s. c., 55 Am. Rep. 261, 262; President of Connersville 7. Wadleigh, 7 Blackf. (Ind.) 102; s. c., 41 Am. Dec. 214, 216. 2. Steeder v. Bleistein, 29 Cent. L. J. 449; N. Y. Ct. App. October 8th, 1889, citing Reed v. Randall, 29 N. Y. 358; Gaylord Mfg. Co. v. Allen, 53 N. Y. 515; Gurney v. Atlantic etc. R. Co., 58 N. Y. 358; Norton v. Dreyfuss, 106 N. Y. 90; Coplay Iron Co. v. Pope, 108 N. Y. 232; Brown v. Foster, 108 N. Y. 387; and further remarking: "The general rule that acceptance of property manufactured under an executory contract by the vendee precludes him from subsequently claiming damages for defects in such property, is element12 C. of L.-59 ary. It is also well settled that a warranty, even in an executed contract, does not extend to known defects. (Schuy ler v. Russ, 2 Caines (N. Y.) 202; Jennings v. Chenango etc. Ins. Co., 2 Denio (N. Y.) 75; Bennett v. Buchan, 76 N. Y. 386; Day v. Pool, 52 N. Y. 416; Parks v. Morris etc. Tool Co., 54 N. Y. 586; Van Schoick v. Niagara etc. Ins. Co., 68 N. Y. 434); and for obvious reasons fraud in respect to the quality and condition of property sold cannot be predicated of defects which were visible, and known to the party alleged to have been defrauded. . The claim here [as to a contract with a lithographic printer in colors and otherwise to get out an edition of a book called 'Studies of Birds of North America,'] is, however, that there was an implied warranty of the quality of the material to be used, and the character of the work to be done, which survived the acceptance of the property sold, and gave a right of action for defects subsequently discovered in such property The action must be supported, if it can be held to lie at all, upon the claim of warranty to be implied from the description of the work contained in the contract. We entertain no doubt that this was an executory contract for the man 929 ufacture and sale of personal property, which, upon performance by the vendor, entitled the vendee to an opportunity of inspection, and the right to accept or reject such property as he should determine after examination. The rule stated in Norton v. Dreyfuss [106 N. Y. 90], assuming that there was no fraud inducing the acceptance, was 'that the acceptance by the vendee of articles manufactured for him under an executory contract, after an opportunity to examine them, precludes him from raising any question Remedy on Divergence from Description.-The buyer may accept an article sold with a warranty though he may know it is not such as is warranted, and may recover damages for the breach. But if there be no warranty, and the article tendered be not such as is described in the contract, and this be known to the purchaser, he must either refuse it and rescind the contract or accept it and abide by the agreement. If, however, the property be not such as is described, and the defect be such as cannot be discovered by the exercise of reasonable care, and the buyer do not discover it until he has made such disposition of the property as to defects or imperfections which were visible and capable of discovery on inspection, unless there is a warranty of their quality, which was intended to survive their acceptance and give the vendee further time for trial and examination.' After quoting from Gurney v. Atlantic etc. R. Co., 58 N. Y. 358; from Coplay Iron. Co. v. Pope, 108 N. Y. 232; and as peculiarly applicable to the case under consideration, the opinion of CHIEF JUDGE CHURCH, in Dutchess Co. v. Harding, 49 N. Y. 321; and distinguishing Day v. Pool, 52 N.Y. 416; and stating the rulings in Muller v. Eno, 14 N. Y. 597; and Brigg v. Hilton, 99 N. Y. 529; it was further said: "We think the authorities are uniform to the effect that a deliberate, intelligent and intentional acceptance of property, manufactured under an executory contract of sale, after inspection, precludes the vendee from claiming damages for any visible or discernible defect in the property sold. The acceptance disclosed by this case is not one to be inferred from the receipt of the property without objection, but is founded upon an actual inspection made with the view of determining the question whether the property should be received as a performance of the contract or not. We think the acceptance was unequivocal, with a full understanding on the plaintiff [who was the author and editor of the work in question] of its design and effect. The inspection of the goods was invited for the purpose of obtaining authority to deliver the goods, on behalf of the plaintiff, to the parties who had contracted to print and bind the plates into books for him. The goods were clearly accepted for this purpose, and they were immediately handed over to those parties for the performance of the work they had contracted to do upon them. The plaintiff well understood this purpose, and treated the contract of the defendant's testator [who was the lithographic printer before mentioned] as having been performed by assuming the ownership and control of the property thereafter; directing the style and mode of binding, and making sales of the books thus bound, and requiring their delivery to his vendees for a period of nearly a year after such acceptance. Under such circumstances he is not at liberty to claim that there was no acceptance of the property sold, or to claim damages for defects in the articles so accepted. Brown v. Foster [108 N. Y. 387] supra, Lilley white v. Devereux, 15 Meas. & W. 285. The facts of this case bring it clearly within the authorities cited. The ground upon which any claim of warranty can be founded` relates solely to the description of property contained in the contract of sale. It refers only to those qualities which were readily discernible upon inspection, and was not collateral to, but a necessary part of, the contract of sale, and affords no ground for the inference that any warranty was intended which should survive the acceptance of the property." Goods Not Properly Packed, etc.-Accordingly where goods are sold by sample without any representation as to their condition, and are accepted and retained by the purchaser, the facts that they are not properly packed, and that the brands on the cases have been effaced, constitute no defence to an action on the price, as the defects complained of are patent on first inspection. Bolles v. Valentine, 2 N. Y. Supp. 710, 711. Tiles Melting in the Furnace.-Where, however, one manufacturer made tiles for others under a contract that they were to be skilfully made and of extra materials, and that they would withstand the heat of the furnaces of the parties supplied, such contract being entered into with knowledge that they were to be subjected to the greatest that he cannot return it to the seller, then he may recover his damages by reason of the seller's failure to comply with the terms of his contract.1 Fraudulent Concealment of Latent Defect. It is sometimes broadly said that where a vendor sells property having a latent defect, of which he knows, but which he fails to disclose to the vendee, knowing that the latter is acting upon the supposition that no such fact exists, he is guilty of a fraud, and the fraud may be pleaded as a defence to an action for the price of the property.2 But it has been very properly pointed out that though, doubtless, "the cases in which it was held that a vendor was bound to disclose a latent and material defect in the thing sold, known to him and unknown to the vendee, were each of them correctly decided;" yet the error has been in deducing a general rule of law applicable in all cases of a like character, from the evidence in a particular case. The better doctrine upon the subject would appear to be that the omission to disclose a latent and material defect, known to the vendor and unknown to the vendee is nierely evidence of fraud, the effect of which the circumstances may strengthen or destroy.3 A vendor is liable for a fraudulent concealment of a latent defect where he sells cattle at a sound price, knowing that they soon heat, and that great damage would result if they proved defective, but they were not made as agreed, and melted in the furnace, it was held that the defects being latent, the implied warranty that the tiles were reasonably fit for the purpose for which they were made survived the acceptance and constituted a good defence and counter claim to an action for the price. Webber v. Demuth, 3 N. Y. Supp. 658. 1. Parks v. O'Connor, 70 Tex. 377, 3S9, 390. 2. Cecil v. Spurger, 32 Mo. 462; s. c., 82 Am. Dec. 140, 141; citing McAdams 7. Cates, 24 Mo. 223; Barron v. Alexander, 27 Mo. 530. It has also been declared that where the unsoundness is latent, that is, such as could not be discovered by the exercise of ordinary diligence, mere silence on the part of the vendor is sufficient to establish the deceit, provided he knows of the unsoundness; for as the thing is not what it appears to be, and diligence does not enable the purchaser to discover its unsoundness, he is deceived unless the fact is disclosed; so that in such a case without what the law considers laches on the part of the purchaser, the deceit is accomplished by the suppressio veri. Brown v. Gray, 6 Jones (N. Car.) L. 103; s. c., 72 Am. Dec. 563. Concerning concealment and misrepresenta tion of material facts in general, and contagious disease of animal in particular, see Wintz v. Morrison, 17 Tex. 372; s. c., 67 Am. Dec. 658; and notes 664. 3. Hadley v. Clinton County Importing Co., 13 Ohio St. 502; s. c., 82 Am. Dec. 454, 462. It is further said in this case (82 Am. Dec. 459) that "good sense and the law will more readily authorize the finding that there was an obligation to disclose a latent, intrinsic defect in the article sold, more peculiarly in the knowledge of the vendor, than extrinsic facts affecting its value, as to which the means of knowledge are equally accessible to both parties. The important point in any case where there is a material latent defect, known to the vendor and unknown to the vendee, is whether, under the circumstances, the omission to disclose it constituted a fraud. It may or may not, under the circumstances, be a fraudulent act giving a right of action for deceit. Whether it be so is, at least, generally, a question of fact upon which the jury should be allowed to pass, and as the diversity in the circumstances is infinite, and any rules to aid the jury in their enquiry apply to classes of cases, care should be taken that the circumstances of the case show that it may properly fall under the class to which have Texas fever or any other disease affecting their value for the purposes for which they are being bought, if the disease is not easily detected by those who have had no experience with it, and if the seller does not disclose his knowledge to the vendee.1 Evidence Concerning Fraud.-While a written contract for the sale of goods by sample cannot be shown by oral evidence to be made with warranty when none is set out in the contract, yet the statements of the broker falsely recommending the quality of the article, the defects of which cannot be assumed to be patent instead of latent, are admissible to show that the sale was fraudulently procured.2 the rule given in [the] charge to the jury applies." 1. Grigsby v. Stapleton, 94 Mo. 423. "Caveat emptor," says BLACK, J., in this case, "is the general rule of the common law. If defects in the property sold are patent and might be discovered by the exercise of ordinary attention, and the buyer has an opportunity to inspect the property, the law does not require the vendor to point out defects. But there are cases where it becomes the duty of the seller to point out and disclose latent defects. Parsons says the rule seems to be that a concealment or misrepresentation as to extrinsic facts, which affects the market value of the thing sold, is not fraudulent, while the same concealment of defects in the articles themselves, would be fraudulent. 2 Pars. on Cont. [6th ed.] 775. When an article is sold for a particular purpose, the suppression of a fact by the vendor, which fact makes the article unfit for the purpose for which it was sold, is a deceit; and as a general rule, a material latent defect must be disclosed when the article is offered for sale, or the sale will be avoided. 1 Whart. on Cont., § 248. The sale of animals which the seller knows, but the purchaser does not, have a contagious disease, should be regarded as a fraud when the fact of the disease is not disclosed. Cooley on Torts 481. Kerr says: 'Defects, however, which are latent, or circumstances materially affecting the subject matter of a sale, of which the purchaser has no means, or at least has no equal means of knowledge, must, if known to the seller, be disclosed.' Kerr on Fraud & Mis. [Bump's ed.] 101. In Cardwell v. McClelland, 3 Sneed 150, the action was for fraud in the sale of an unsound horse. The court had instructed that if the buyer relies upon his own judg ment and observations, and the seller makes no representations that are untrue, or says nothing, the buyer takes the property at his own risk. This instruction was held to be erroneous, the court saying: 'If the seller knows of a latent defect in the property that could not be discovered by a man of ordinary observation, he is bound to disclose it.' In Jeffrey v. Bigelow, 13 Wend. 518, the defendants, through their agent, sold a flock of sheep to the plaintiff; soon after, a disease known as the scab made its appearance among the sheep. It was, in substance, said, had the defendants made the sale in person, and known the sheep were diseased, it would have been their duty to have informed the purchaser; and the defendants were held liable for the deceit. In the case of McAdams v. Cates, 24 Mo. 223, the plaintiff made an exchange or swap for a filly, unsound from loss of her teeth. The court, after a careful review of the authorities, as they then stood, announced this conclusion: 'If the defect complained of in the present case was unknown to the plaintiff, and of such a character that he would not have made the exchange had he known of it, and was a latent defect such as would have ordinarily escaped the observation of men engaged in buying horses, and the defendant knowing this, allowed the plaintiff to exchange without communicating the defect, he was guilty of a fraudulent concealment, and must answer for it accordingly.' This case was followed, and the principle reasserted, in Barron v. Alexander, 27 Mo. 530; Hill v. Beals, 2 H. & N. 299, seems to teach a different doctrine, but the cases in this court, supported as they are, must be taken as tablished law of this State." the es 2. Mayer v. Dean, 22 N. E. Rep. (N. Y.) 261; s. c., 29 Cent. L. J. 445. "The LATERAL (See EASEMENT; LATERAL AND SUBJACENT SUPPORT). In ordinary language used in the sense of sideways, directed towards the side; in technical language it is used in the sense of longitudinal.1 LATERAL AND SUBJACENT SUPPORT (See EASEMENTS; PARTY WALLS; INJUNCTIONS). 1. Definition, 933. 2. How the Right May be Acquired, 935. 3. Rights and Liability of Adjoining Owners, 937. 4. Damages, 939. I. Definition. The right of lateral and subjacent support is that right which the owner of land has to have his land supported by the adjoining land or the soil beneath. As applied to land only, in its natural state, this is a right ex jure naturæ; but when applied to any structure erected upon the land, it is an easement, and can only exist when acquired in some one of the ways recognized by law.2 case shows," said the court. "that the defendants, on the trial, offered to prove that the broker making the contract for the plaintiff represented that the seed proposed to be sold was clean and free from impurities. This evidence was objected to by the plaintiff, and excluded by the court, upon the ground that it tended to vary, enlarge and contradict the contract of sale. There can be no question about the correctness of this ruling, if the evidence merely tended to establish a warranty different from that expressed in the contract. The contract, by its terms, secured to the defendants a right to have the bulk of the goods sold correspond as to quality and appearance with the sample (Hargons 7. Stone, 5 N. Y. 73; Beirne v. Dord, 5 N. Y. 95), and the defendants were precluded by well settled rules from showing by parol a more enlarged or different contract. The offer in this case, however, went further than this, and tended to show that the contract itself was procured by fraudulent representation. The representation attempted to be proved related to the character and quality of the thing offered for sale, and was material upon one of the defences set up in the answer. The manifest tendency of such a representation was to throw the purchaser off his guard, and lead him to forego an examination which he might otherwise make. Under the evidence in this case it cannot be assumed, as matter of law, that these defects were visible or known to the purchaser, and it therefore became a question for the jury to determine whether the defendants were in fact deceived by the representation. This evidence was expressly offered for the purpose of showing fraud, and we think it was competent upon that issue. Hall v. Erwin, 66 N. Y. 649; Johnson v. Hathorn, 2 Abb. Dec. (N. Y.) 465; Mead v. Bunn, 32 N. Y. 275. Whether the defect was invisible, and the defendants were in fact deceived, relying upon the representation and omitted to make such an examination of the seed as they might otherwise have made, would be for the jury to determine upon all the evidence. Day v. Pool, 52 N. Y. 416. . . In an action between vendor and vendee, knowledge possessed by either the principal or the agent is respectively imputable to each other, and an agent whose principal has knowledge of latent defects in property proposed to be sold cannot honestly represent to its intending purchaser that it is free from such defects." 1. Thus, in charging the jury upon a question of patent law, MCLEAN, J., said: "The words 'lateral motion,' in mechanics, do not mean, as the term ordinarily signifies, a side motion, but a longitudinal one." Brook & Morris v. Jenkins & Bicknell, 3 McLean (U. S.) 432, 454. 2. "Every person has a natural right, ex jure nature, to support to his land from the adjacent and subjacent soil. This natural right is incident to land, and the owner is as much entitled to it as he is to the land itself, without any grant by the servient owner or any |