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quality of the brick ordered by appellant, and the respondents seem to have recognized this fact on the trial, and very properly produced testimony tending to show that they had discharged their obligation to appellant by sending the character of brick required by the latter. But counsel for respondents insist that, if the brick were defective in quality, and not such as were ordered, the defect was patent; and that appellant, having inspected them, and having failed to return or offer to return them, can claim no damage on account of such defect. The court below seems to have adopted the view of counsel, and instructed the jury as follows:

"10. You are further instructed, that in case you find a warranty of quality by these plaintiffs of the goods in question, and a breach thereof, then, in all events, the plaintiffs would only be responsible for such damage as the difference in the price of said goods as represented and the value of the goods as they really were, together with such other damages as were the direct and immediate consequence of the said breach; but that if the defendant, before using the same, had an opportunity to inspect said goods, and did not do so, and if upon such inspection could have ascertained the defects claimed, then said defendant is not entitled to any damages.

"11. You are further instructed, that if the defendant retained and used said goods after a knowledge of their defects, without notifying plaintiffs of such within a reasonable time, it waives its right to recoup for damages."

Appellant claims that these instructions do not state the law cerrectly, and should not have been given to the jury. We think these instructions were erroneous, and that appellant's position must be sustained. Authorities are cited in the brief of counsel, from New York and Wisconsin, to sustain the correctness of these instructions. But the New York authorities simply hold that in cases of executory contracts for the sale and delivery of personal property in the absence of a warranty and a breach, the vendee's right to recover damages does not survive the acceptance of the property, after an opportunity to discover defects, unless notice has been given to the vendor, or the vendee returns or offers to return the property. The rule is there held inapplicable in cases of express warranty of quality. These decisions do not, therefore, support respondent's contention to the extent claimed: See Fairbank Canning Co. v. Metzger, 118 N. Y. 260; 16 Am. St. Rep. 753; Gaylord Mfg. Co. v. Allen, 53 N. Y. 519. The Wisconsin

cases cited by counsel declare the doctrine in that state to be, that if chattels sold under a warranty, express or implied, are defective or unfit for the use intended, and the defects were not open and palpable, and were unknown to the purchaser when he received the goods, he may, if sued for the price, without returning or offering to return the goods, and without notifying the vendor, recoup such damages as he may have sustained on account of such defects: See Olson v. Mayer, 56 Wis. 551: Buffalo Barb Wire Co. v. Phillips, 67 Wis. 129. In the case at bar the evidence is conflicting, and does not satisfactorily show that there was any patent and obvious defect in the brick in question. One of the plaintiffs, while claiming that the brick were of the quality ordered, testified that "a man who understands fire-brick can, nine times out of ten, tell whether or not brick are good by looking at them." On the contrary, Kelly, who was a man experienced in building coke-ovens, testified, substantially, that he knew of no method of ascertaining whether the brick were fit for such a purpose, other than actual use. But be that as it may, we are of the opinion that the appellant had a right to assume that the brick were of the quality ordered, and to act accordingly, and that appellant violated no duty it owed to respondents in failing to search for imperfections before using them.

It is undoubtedly true, that if the brick were defective, and appellant was silent, and did not give notice or offer to return them within a reasonable time after discovering defects, the right to rescind the sale was thereby waived. But the right to recover damages on account of defective quality was in no wise affected: Benjamin on Sales (Bennett's notes, 1888), sec. 901. It is also true that in such cases a failure to give notice or to offer to return the goods would have an important bearing upon the question of warranty, and would raise a strong presumption that the goods received were of satisfactory quality: Babcock v. Trice, 18 Ill. 420; 68 Am. Dec. 560; Abbott's Trial Evidence, 348. That the vendee may retain the goods without notice, and plead breach of warranty, in an action by the vendor for the purchase price, is shown by numerous authorities: Dayton v. Hooglund, 39 Ohio St. 671; Polhemus v. Heiman, 45 Cal. 573; Holloway v. Jacoby, 120 Pa. St. 583; 6 Am. St. Rep. 737; Benjamin on Sales, sec. 903, p. 867, and cases cited; Babcock v. Trice, 18 Ill. 420; 68 Am. Dec. 560; Bagley v. Cleveland Rolling Mill Co., 22 Blatchf. 342; 21 Fed. Rep. 150.

The following instructions to the jury are objected to by the a: plant:

"8. Fraud is never presumed, but must be affirmatively proven by the party alleging the same. The law presumes that all men are fair and honest, that 'their dealings are in good faith, and without intention to disturb, cheat, hinder, delay, or defraud others. Where a transaction called in question is equally capable of two constructions, one that is fair and honest and one that is dishonest, then the law is, that the fair and honest construction should prevail, and the transaction called in question should be presumed fair and honest.

"9. You are instructed that in so far as the defendant relies upon a warranty of quality of the property sold and a breach of the same, the burden of proving the warranty is upon the defendant, and unless it has proved both the warranty and the breach alleged by a preponderance of evidence, it will not be entitled to any benefit therefrom in the suit."

"12. If you believe from the evidence that the falling in of said ovens was caused by a misconstruction of the same, or any defects in said construction or material used therein, other than the goods involved in this controversy, or the misuse of said oven subsequent to said construction, the defendant is not entitled to any damage herein.

"13. You are instructed that in no event is plaintiff liable for any damages for expected profits to be obtained from the sale of merchandise produced by said ovens, in which goods in controversy were to be used, unless the contract for the same were specially and specifically made known to plaintiff at the time of the purchasing of said goods, and that he unstood that they were for that purpose.

"14. You are further instructed that the law is, that a known, defined, and described article is ordered of a manufacturer, although it is stated to be required by the purchaser for a particular purpose, still, if the known, defined, and described thing be actually shipped, there is no warranty that it shall answer the particular purpose intended by the buyer.

"15. You are further instructed that if you believe from all the evidence that the defendant, after a discovery of the alleged defects, agreed to pay for said goods, and said nothing about damages to the plaintiff, and made no demand therefor, then it will be taken to have waived all right to such damages." The ninth instruction is unobjectionable. The defendant having alleged a warranty or its equivalent, and a breach

thereof, it was incumbent upon it to prove both in order to be entitled to any benefit therefrom. It is contended that there was no evidence to justify either the eighth, thirteenth, fourteenth, or fifteenth instructions, and that each of them was calculated to mislead and confuse the jury. As to the eighth, thirteenth, and fifteenth instructions, the point is well taken. The twelfth instruction was properly given. The fact that the ovens fell down was relied on by the appellant as positive proof of the unfitness of the brick. If the falling was caused by unskillful construction or defective material, other than that involved in this controversy, or subsequent misuse of the ovens, then there was practically no proof of poor quality, and there could therefore be no damage.

Appellant also claims that it was error for the court to refuse to admit its exhibit 1 in evidence. That was a letter written by E. H. Bradley to Superintendent Kelly, concerning prices and quality of brick sold by him, and concerning freight rates to Tacoma. It did not specifically refer to the brick in controversy, but it was a part of the correspondence between the parties concerning the subject of fire-brick, and was the only communication shown specifying the price of the brick. It contained statements as to the quality of the brick which the respondents proposed to sell to appellant, and the mere fact that the other brick had been shipped to appellant just previous to the order for those in controversy did not, in our opinion, render the letter irrelevant or immaterial. It should have gone to the jury for what it was worth.

The judgment of the court below is reversed, and the cause remanded for a new trial.

SALES-WARRANTY — NECESSITY FOR INSPECTION BY PURCHASER. — The fact that a buyer has inspected goods before acceptance does not deprive him of the protection of a warranty as to latent defects: Miller v. Moore, 83 Ga. 684; 20 Am. St. Rep. 329, and note. Where a purchaser buys goods of a certain described quality offered for sale, he may rely upon such description: Brantley v. Thomas, 22 Tex. 270; 73 Am. Dec. 264, and note; Hyall v. Boyle, 5 Gill & J. 110; 25 Am. Dec. 276. An express warranty will not reach open and visible defects: Fisher v. Pollard, 2 Head, 314; 75 Am. Dec. 740, and note; Thompson v. Harvey, 86 Ala. 519. A vendee who discovers a latent defect in an article purchased by sample may, after delivery, return the same to the vendor: Hudson v. Roos, 72 Mich. 363.

SALES BY WARRANTY NECESSITY FOR NOTICE OF BREACH OF. —— - Where there is a breach of warranty in goods sold, the vendee may retain the same and sue for damages for the breach: Underwood v. Wolf, 131 Ill. 425; 19 Am. St. Rep. 40; Argersinger v. Macnaughton, 114 N. Y. 535; 11 Am. St. Rẹp. 687.

SALES WARRANTY - BREACH OF BURDEN OF PROOF ON WHOM, – Where a vendee sues for a breach of warranty, the burden of proof is on him; Underwood v. Wolf, 131 Ill. 425; 19 Am. St. Rep. 40; Gutta Percha Mfg. Co. Wood, 84 Mich. 452.

EVIDENCE-ADMISSIBILITY OF Letters in. — Letters written by the parties to the action, and relating to the res gesta, are admissible in evidence: Tapley v. Tapley, 10 Minn. 448; 88 Am. Dec. 76, and note; Lee v. Campbell, 77 Wis. 340.

STATE V. JONES

(2 WASHINGTON, 662.]

PROHIBITION DOES NOT LIB WHERE REMEDY BY APPEAL EXISTS.-The writ of prohibition is an extraordinary remedy, only to be resorted to in cases where the usual and ordinary forms of remedy are insufficient to afford redress. It will not, therefore, lie to restrain courts having origi nal jurisdiction of all cases in equity from issuing injunctions in excess of their jurisdiction, when there is a complete remedy by appeal from any final judgment they may render.

Turner and Graves, and W. C. Jones, for the petitioners.

Crowley and Sullivan, and H. J. Snively, for the respond

ents.

ANDERS, C. J. This is an application for a writ of prohibition commanding the judge of the superior court of Pierce County and the respondent Jones to refrain from further proceedings in a certain action pending in said court, wherein the said W. L. Jones is plaintiff, and the relators are defendants, which action was brought to restrain the relators George A. Black, S. B. Conover, and Andrew H. Smith, as commissioners appointed by the acting governor of the state to locate a site for an agricultural college, from further proceedings in the matter of said location; and the relators S. B. Conover, Andrew H. Smith, George W. Hopp, J. H. Bellinger, and Eugene Fellows, as the board of regents of said college, appointed by the said acting governor, from doing any act whatever as such board of regents; the relator T. M. Reed, as state auditor, from issuing any warrant or warrants for the payment of the appropriation made by the legislature for the establishment and maintenance of an agricultural college and school of science; the relator A. A. Lindsley, as state treasurer, from paying such warrant or warrants; and to have the said Black, Conover, and Smith decreed usurpers and intruders as commissioners under the act of the legislature of March 9, 1891,

AM. ST. REP., VOL. XXVI. - 57

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