n of the suit. The decision of these des not depend on the Constitution of the United States. There is nothing a Constitution or laws of the United States into the determination of the cause **A construed one way will defeat the deor in another sustain them. 3mins to consider the removal on the apof the Independent Steamboat Co. The suit is against all the defendants on the allegation that, acting in com ey are all engaged in violating the rights e Cay by keeping up and maintaining the question. The averment in the comthat the defendant Starin is in reality eric actually operating the ferry, and that the other defendants as his instruments GEORGE H. WOOSTER. (See S. C., Reporter's ed., 285-288.) Upon appeal from a decree against all of the de- Argued Oct. 19, 1885. Decided Nov. 2, 1885. purpose. It is conceded that the In-APPEAL from the Circuit Court of the United States for the Southern District of New York. On motion to abate the suit as to deceased The case is sufficiently Stated by the court. Tent Steamboat Co. does not own the Neither section applies to appeals from a Green v. Watkins, 6 Wheat. 260 (19 U. S. bk. 5, L. ed. 255). that the case was properly remanded, 5. M. Kenney, Clerk, Sup. Court, U. 8. A suit cannot abate after a final judgment in favor of a plaintiff, except through the fault of the plaintiff himself or his representatives. Mr. Chief Justice Waite delivered the opinion of the court: The suit below was in equity and brought by George H. Wooster, the appellee, against Solomon Moses, Gotcho Blum and Solomon Weil, partners under the name Moses, Blum & Weil, for an infringement of letters patent. A final decree for an injunction and damages was rendered against the defendants, May 23, 1883. From this decree all the defendants appealed, and the appeal was docketed here October 12, 1883. Blum died January 2, 1884. On the 11th of April, 1885, Wooster appeared in this court and suggested his death, whereupon the usual order under Rule 15, sec. 1, was entered, that, unless his representatives should become parties within the first ten days of this term, the appeal would be dismissed. Proof of the due publication of a copy of this order has been made, but the representatives of the deceased appellant have not appeared. The surviving appellants now move that the action abate as to the decedent, but that it proceed at their suit as survivors. The Judiciary Act of 1789, 1 Stat. at L. 90, ch. 20, sec. 31, provided that "If there be two or more plaintiffs or defendants, and one or more of them shall die, if the cause of action shall survive to the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants, the writ or action shall not be there [285] [287] Decrivet Jan. 3, 1985. PRAC a ne Supreme Court of the This vis enacted in the Revised Stantes sation Fid, and smstantially a aqui the Act of unit. 1. se vuch, t was held in Cartz 7. Ronan, 1 B. & A. vannlicable awe of error. Ellenborough in giving has judgment, aut. Lori The proceedings in schon which com menced by a writ and the case of con the damage mstained by he parties om de error in the previous fidement, and this tum age equally amaches in the survepron was without authority and void m my wher which. This cadeam effect to our tente in If Trang • Currit, Pet. 98 37 C. 9. b. L. ed. Maj. Appeals to this court from the arcnit and is trict courts are "mifert to the me riles, regilations and restrictions as are may be present ed by law in cases of wrine of error. Rev. Stat. 31612. The cause of action in this appeal that la to wy, "the damage mutained by the parties in the previous depres, amaches to the g aprelaza. All the defendants were enjoined from miringing the patented machine and a were made lable for the payment of the dam agea which the patentee had ained by their int acts as partners. Clearly, therefore the case is within the statute and may be proceeded with accordingly. The cause of action is one that survives to the surviving appellants. Undoubtedly cases may arise in which the presence of the representatives of a deceased anses ampe he proper ficers of the Cir of Selena sate and teliver certain venis ulei be the pen a subscription to ut in uimat. The tour head that the menteret juigments rang the writs_ Clarke, fur infendant in error, in support o for planaif in ester, AMATL son of the court of Dart Cry Baby Co. Gethard, 1 These motions are granted on the authorit C. S. 183 B. L. ed. 115, and the cas there cited I appears distinedy on the face the opinion of the court below, which, by t Rev. Stat. Ark 1984, sec. 1318), that the c laws of Arkansas, forms part of the reco cision of the case was pet, and properly pi ation of the federal question that may possit have been presented by one of the several fenses set up in the answer of the City, to w that the Constitution of 1874 prohibited t issue of the bonds in dispute. In fact, it is timated in the opinion that, if the case b rested on this defense alone, the judgment wo have been the other way. Dismissed. [288] appellant will be required for the due prosecco a ground which did not involve a consid tion of an appeal, notwithstanding the suvivorship of others. If that should be so, the court can, with propriety, direct that the appeal be dismissed, unless it be properly revived within a limited time. The House of Lords made such an order in Blake v. Bogle, a note of which is found in Macqueen's App. Jur. H. of Lords, 244. Here, however, there is no need of a revivor, that substantial justice may be done. The decree below was against all the defendants jointly, upon a joint cause of action. It affected all alike, and the interest of the decedent is in no way separate or distinct from the others. If the representatives of a deceased appellant voluntarily come in and ask BOSTON HYDRAULIC GOLD MINII to be made parties, they may be admitted. Such a course was adopted by the House of Lords, in [288] True copy. Test: James H. McKenney, Clerk, Sup. Court, C COMPANY, Piff. in Err., 0. Thorpe v. Mattingly, 1 Phil. Ch. 200. In the EAGLE COPPER AND SILVER MINI It is proper, therefore, that the appeal should proceed under the statute at the suit of the survivors, and an entry to that effect may be made. True copy. Test: COMPANY. (See S. C., Reporter's ed., 221) Practice. James H. McKenney, Clerk, Sup. Court, U. S. counsel for plaintiff in error having withdrawi In the absence of any assignment of errors. THOMAS M. JACKS, Piff. in Err. v. CITY OF HELENA. SAME v. SAME. (See 8. C., Reporter's ed., 288, 289.; A motion to dismiss will be granted where it ap-ion of the court, 892 We dis cause was reached on the call of bracket, it was submitted by the defendant on a printed brief. An assignment of as not annexed to or returned with the error, as required by section 997 of the Statutes At the last term the counsel ire plaintiff in error was permitted to with***s appearance, and no one has taken his No argument has been submitted in bethe plaintiff in error, and no errors have bered in any form. IN ERROR to the Circuit Court of the United States for the Eastern Listrict of Wisconsin. Statement by Mr. Justice Woods: Edward P. Allis, the defendant in error, was the plaintiff in the circuit court. He brought his suit to recover from the defendants, Thomas JH. McKenney, Clerk, Sup. Court, U. S. J. Pope and James E. Pope, now the plaintiffs refore afirm the judgment without the record. Trampy Test: in error, the sum of $17,840, the price of 500 THOMAS J. POPE ET AL., Plffs. in Err., to accept because it was not of the quality Where the complaint alleged a contract for fon at one place, and the answer a conevery at a different place, evidence of the plaintiff, which tended to support the of the answer, was properly admitted unof the Revised Statutes of Wisconsin; the having failed at the trial to prove that red by the variance between the com4 the proof. Aments made under oath, in a pleading in law, are competent evidence in another the party making them; and the fact verments are made on information and only to their weight and not to their adFoods of a specified quality, not in excertained, are sold, and the seller unp them to a distant buyer, and, when or ascertained, delivers them to a ad sotes by Mr. Justice WOODS. vis evidence. -mpare Norrington v. Wright, ante, 366, • Piowanie, 372. tuhi wamanty of quality; breach of; whether terracanon in the absence of fraud on the i, remedies of render. hcharise may be divided for convenperhaps not with scientific accuA faneile ascertained article already in De a Where goods are inspected by vendee. Pods cannot be inspected. (c) Where Tusub but are not inspected. dan article not ascertained and specific, mple. (a) Where goods are ascertere goods are not ascertained. wd that in cases of fraud by the le rende ́s right to rescind may rest upon pendently of other considerations. stated that where the property in *matter of the contract has not actually Seven dec, his right to reject the goods ** 565 t correspond with the description which they were sold is prob Sun 12 ahistory, Sales, $421. But see Lyon ** Deow, 61 U. 8. (20 How.), bk. 15, 847. Tressel, amcertained article. Tamery bell in England that the vendee *** the contract for breach of warranty of Mar. Hennay, 3 Exp., 82. han vaiverruled in Street v. B, 2 B. & Motato be carved that in neither of these n of this question necessary to these. In Street v. Blay, supra, the if the court on this point were stated which the defendants had agreed to furnish. The plaintiff also demanded $1,750 freight on the iron, which he alleged he had paid. The facts appearing upon the record were as follows: The plaintiff carried on the business of an iron founder in Milwaukee, Wisconsih, and the defendants were brokers in iron in the City of New York. In the month of January, 1880, by correspondence carried on by mail and telegraph, the defendants agreed to sell and deliver to the plaintiff 500 tons of No. 1 extra American and 300 tons No. 1 extra Glengarnock (Scotch) pig iron. The American iron was to be delivered on the cars at the furnace bank at Coplay, Pennsylvania, and the Scotch at the yard of the defendants, in New York. By a subsequent correspondence between the plaintiff and the defendants, it fairly appeared that the latter agreed to ship the iron for the plaintiff, at Elizabethport, New Jersey. It was to be shipped as early in the spring as cheap freights could be had, consigned to the National Exchange Bank at Milwaukee, which, in behalf of the plaintiff, agreed to pay for the iron on to be confined to the purchase of a specific article accepted and received by the vendee, the property in which is completely vested in him. In Kennedy v. Panama, etc., Mail Co. (L. R. 2 Q. B., 587), it was said that "where there has been an innocent misrepresentation or misapprehension, it does not authorize a rescission unless it is such as to show that there is a complete difference in substance between what was supposed to be and what was taken, so as to constitute a failure of consideration." See Couston v. Chapman, L. R. 2 H. L. Sc., 254. In this country the authorities differ. In Thornton v. Wynn 25 U. S. (12 Wheat.) 193, bk. 6, 598, it is said that "if the sale be absolute and there be no subsequent agreement or consent of the vendor to take back the article the contract remains open and the vendee is put to his action upon the warranty, unless it be proved that the vendor knew of the unsoundness of the article and the vendee tendered a return of it within a reasonable time." In Lyon v. Bertram, 61 U. S. (20 How.), 149, 154, bk. 15, 847, the question came up again but under such a state of facts that the court did not directly pass upon this question. The doctrine of Thornton v. Wynn and Street v. Blay, supra, is supported by Day v. Pool, 52 N. Y., 416 Rust v. Eckler, 41 N. Y., 488; Muller v. Eno, 14 N. Y., 597; Freyman v. Knecht, 78 Pa. St., 141; West v. Cutting, 19 Vt., 536 (see Richardson v. Grandy, 49 Vt., 22); Buckingham v. Osborne, 44 Conn., 133; Dawson v. Pennaman, 65 Ga., 698; Wright v. Davenport, 44 Tex., 164; Briggs v. Hilton, 1 Cent. Rep., 312; Hoover v. Sidener, 98 Ind., 290. In many of the other States the older English doctrine, as laid down in Curtis v. Hannay, 3 Esp., 82, has been followed: "He to whom property is sold [363] [364] SUPREME COURT OF THE UNITED STATES. receipt of the bills of lading. That quantity of | was admitted by the plaintiff. The jury reAmerican iron was landed at Milwaukee and turned a verdict for the plaintiff for $16,513.11, OCT. TERM, delivered to the plaintiff about July 15 fore its arrival at Milwaukee, the plaintiff had judgment against the defendants. This writ Be- for which sum and costs the court rendered a not only paid for the iron but also the freight of error brings that judgment under review from Coplay to Milwaukee. Soon after the arrival in Milwaukee, the plaintiff examined the Lynde, for plaintiffs in error. 500 tons American iron, to which solely the Messrs. George P. Miller and Wm. P. controversy in this case referred, and refused to accept it on the ground that it was not of the grade called for by the contract, and at once gave the defendants notice of the fact, and that he held the iron subject to their order, and brought this suit to recover the price of the iron and the freight thereon. The defenses relied on to defeat the action were (1) that the iron delivered by the defendants to the plaintiff was number one extra American iron, and was of the kind and quality required by the contract, and (2) that the tire [365] having passed to the plaintiff when the iron was shipped to him at Elizabethport, he could not afterwards rescind the contract and sue for the price of the iron and the freight which he had paid, but must sue for a breach of the warranty. It was conceded upon the trial that if the plaintiff was entitled to recover at all, hi recovery should be for $22,315.40. The defendants pleaded a counterclaim for $5,311, which with an express warranty, as well as he to whom | and J. G. Jenkins, for defendant in error. Messrs. Eppa Hunton, Jeff. Chandler the court: exceptions to the admission of evidence by the Revised Statutes of Wisconsin, which constitutes a rule for the guidance of the federal But it is clear that, under section 2669 of the cases where the goods sold are found not to corre of something which a party undertakes shall be To same effect see Sparling v. Marks, 86 Ill., 125; Howe M. Co. v. Rosine, 87 Ill., 105 (but see Owens v. Sturges, 67 Ill., 366); Prickett v. McFadden, 8 Bradw., 197; Lane v. Lantz, 27 Md., 211; McCeney v. Duvall, 21 Md., 166; Warder v. Fisher, 48 Wis., 338; Churchill v. Price, 44 Wis., 540; Merrill v. Nightingale, 39 Wis., 247; Marston v. Knight, 29 Me., 341; Rogers v. Hanson, 35 La., 283 (in this case the court Bays: 46 The doctrine of the Massachusetts cases, though perhaps not sustained by the greater number of authorities, is, to our minds, the more reasonable and just. We know of no satisfactory reason why one who desired a good article and is willing to pay a price which will command it, should be required to keep an inferior article at a lesser price. Such a construction of the law substitutes for the contained in Smith's Leading Cases, Vol. 2, p. 31. parties' contract an agreement which he did not ed. 1879, quoted with approval, Benj. Sales, § 1349: Perhaps the clearest statement of this doctrine is make, and requires him to accept an article which he would not have purchased if he had known of its where the subject matter of the sale is ascerdefects"); Jack v. Des Moines, etc., Co., 53 Ia., 399; tained and existing, so as to be capable of being in"A warranty properly so called can only exist Dill v. O'Ferrell, 45 Ind., 268; Byers v. Chapin, 28 spected at the time of the contract, and is a collatOhio St., 300; Perry v. Johnson, 59 Ala., 648; John-eral engagement that the specific thing so sold posson v. Whitman Agr. Co., 2 West. Rep., 414; Brau-sesses certain qualities; but the property passing son v. Turner, 77 Mo., 489. by the contract of sale, a an article answering the description is a condition precedent to the purchaser's liability, and if this "If the sale is of a described article, the tender of condition be not performed the purchaser is entitled to reject the article, or if he has paid for it. his use: whereas, in case of warranty the rules are to recover the price as money had and received for description as condition precedent, although somevery different." times laid down in such terms as to cover all cases. This distinction between warranty of quality and Benj. Sales, § 917. is seldom, if ever, applied to cases where goods are inspected by the vendee. can It should be added that the right to rescind, where not entitle the vendee to rescind the contend it exists, must be exercised within a reasonable time and the sale must be rescinded in toto. See Harzfeld v. Converse, 105 Ill., 534. An offer to return the goods, if rejected, or a notification that the vendee rescinds the sale and holds the goods subject to the vendor is usually held to have the same effect as an actual return of the goods. The rule that the sale must be rescinded in toto, if at all, or that the vendor must be put in statu quo, is subject to the exception that where the use of some of the goods is necessary to a proper test, the vendee may use the amount necessary to such test. This qualification has special application to sales by sample. It will be seen that the authorities are about equally divided as to the right of the vendee in this class of cases to rescind for breach of warranty of quality. nied, a distinction has been made or attempted, beIn the English courts, where this right is detween cases of breach of warranty of quality and 394 revest the property in the vendor without his conthe contract, an engagement that it shall when exsent. But where the subject matter of the sale is isting or ascertained possess certain qualities, is not not in existence, or not ascertained at the time of a mere warranty but a condition, the performance of which is precedent to any obligation upon the vendee under the contract, because the existence of those qualities being part of the description of the thing sold becomes essential to its identity, and the vendee cannot be obliged to receive and pay for a thing different from that for which he contracted." Mr. Benjamin adds that the same reasoning would spection. Lord Abinger, in the case of Charter. Hopkins, supra, regrets the confusion which has apply to goods beyond the reach of the buyer's inarisen from the failure to observe the distinc particular description, the latter being held to a sale with warranty of quality and a sale by a tion above mentioned, in the distinction between constitute a condition precedent. This is concurred . in that State, this assignment of error is well taken. The section mentioned pro"No variance between the allegations in and the proof shall be deemed mateit shall actually mislead the adverse pons prejudice in maintaining his action it se on its merits; whenever it shall be Ld that a party has been so misled, the ah be proved to the satisfaction of the what respect he has been misled, and 2 pet the court may order the pleading to aded upon such terms as may be just." The answer of the plaintiffs in error denied the contract provided for the delivery of in Milwaukee, and averred that the as to be delivered at Coplay. We do not that evidence offered by the defendant in which tended to establish the averments fthe newer rather than of the complaint, was sta variance as could mislead the plaintiffs in to their prejudice in maintaining their depon the merits. But if they had been ed, they should have proved the fact sfaction of the court upon the trial. a neglected to do this, they cannot now It is clear that, under the Statute sin, the plaintiffs in error had no just exception to the admission of the eviacted to. Bonner v. Home Insurance Ws. 677; Leopold v. Van Kirk, 29 Wis. H Mr. Benjamin and the modern English au*re there is a sale of goods by description, where either goods in genere are sold acurtun description, or where the sale is of whose character is presumably only to the buyer by the description under which Seid to him (e. g.. bales of goods specified arn a bill of lading and described in the sa being of a certain kind); it is of the esthe contract that the goods furnished shall in the description." Campbell, Sales (Lonp. 30, citing Tye v. Fynmore, 3 Camp., Horton, 2 Bing. (N. C.) 668; Barr v. **AM &W, 30; Allan v. Lake, 18 Q. B., 560; 610 Hurl. & Gord. Ex., 191; Josling v. Letra C. B. N. S. 447. In this last case the d was oxalic acid" and although the the bulk of the goods, yet a chemStays having shown the goods to be so im*** it to be "oxalic acid" in a mercantile ** the purebaser was held not bound to take *Pook Compare Pettitt v. Mitchell, 4 M. & G., AY Hitchcock, 14 C. B. N. S., 65. betonation has not been made in many of the J 553; Giffert v. West, 38 Wis. 617. These cases show that the discrepancy between the pleading and the proof was a variance within the meaning of the Statute of Wisconsin, and that the section cited is applicable to the question in hand. 2. The next contention of the plaintiffs in error is that evidence was improperly admitted by the circuit court to show that the iron landed at Milwaukee was not of the quality required by the contract, the defendant in error not having shown or offered to show, as the plaintiffs in error insisted, that it was the same iron which the defendant in error had purchased, and which had been shipped at Elizabethport. And on the ground that the identity of the iron was not shown, the plaintiffs in error insist that the court erred in refusing to charge the jury, as requested by them, to return a verdict in their favor. We think the assignment of error is not supported by the record. The defendant in error did introduce evidence and, as it seems to us, persuasive evidence, to show that the iron shipped for the defendant in error at Elizabethport was the iron landed and delivered to him at Milwaukee. The testimony introduced tended to prove that one Hazard, on whose dock, at Elizabethport, New Jersey, iron belonging to the plain sample it is one of the conditions of the contract that the goods shall equal the sample, that the vendee may examine the goods when tendered, and if not equal may reject them. Benj. Sales, & 910. In other parts of his work the author calls such sale a sale with warranty. $969. In Couston v. Chapman, L. R. 2 H. L. Sc., 254 (1872), it is said: "In England if goods are sold by sample and they are delivered and accepted by the pur. chaser, he cannot return them; but if he has not completely accepted them-that is, if he has taken the delivery conditionally-he has a right to keep the goods for a sufficient time to enable him to give them a fair trial, and if they are found not to correspond with the sample, he is then entitled to return them. As I understand the law of Scotland, although the goods have been accepted by the purchaser, yet if he find that they do not correspond with the sample he has an absolute right to return them." Per Ld. Chelmsford. It is believed that a delivery before inspection would, in the absence of anything to show a contrary intention, be presumed to be on condition that the goods might be returned if not in accordance with sample. Story, Sales, 456; Benj. Sales, § 910. And it will be a question for the jury whether the goods have been retained longer than is necessary for inspection. Benj. Sales, § 1350. repudiate the purchase for nonconf the article delivered to the descrip***1.2 it was sold, is universally conced- In Dawson v. Collis, 10 C. B. (1 J. Scott), 523, ats foun ied upon the engagement of it was held that upon a sale of specific goods with by much description that the article de- a warranty that they were equal to the sample, the respond with the description. Sub- vendee could not refuse to receive them on the Aktijdion is warranted. It will com- ground that they did not correspond with the sam51 al principles to treat such en-ple, unless there was an express condition to that atens in order to afford the pur- effect, but must resort to a cross action or rely on targed remedy by rescission than that fact in reduction of damages. In this case State on a simple warranty." Wolcott v. Street v. Blay is quoted from at length. See also *AN J. L. 2. See shields v. Reibe. 9 Heyworth v. Hutchinson, L. R. 2 Q. B., 447 (1867), which was a sale by sample, of a specific quantity of wool to arrive. It was held that the buyer could not reject it for inferiority. Compare Toulmin v. Hedley, 2 C. & K. N. P. 845, 157. The principles laid down in these last two cases are believed to be irreconcilable. See also Azemar v. Casella, L. R. 2 C. P., 431, 677. articles not in existence or not ascer ize to thận nima of cases may be regarded 1 In Grimaldi v. White, 4 Esp., 95, it was held that if a party purchased a picture pursuant to a specimen shown, and on delivery the picture was found inferior in quality to the specimen, his only remedy was to reject it. In an action for the price he could not reduce the damages by showing its inferiority. But see Fielder v. Starkin, 1 H. Bl., 17; Poulton v. Lattjmore, 9 B. & C., 259. Notwithstanding the English authorities hold that a breach of warranty of quality does not authorize a |