[369]

SUPREME COURT OF THE UNITED STATES.

tiffs in error was stacked, shipped, between April 28 and May 12, at Elizabethport, on five canal boats, whose names are given, 500 tons of American iron, consigned to Thomas J. Pope & Brother, care National Exchange Bank, Milwaukee, Wsconsin, and to be transported to Milwaukee by the river, canal and lakes; that about the same time there was shipped to the same consignees, and to the care of the same bank, the 300 tons of Scotch iron, which had been sold by the plaintiffs in error to the deCendant in error.

It was further shown that on June 9 and 15 following, 800 tons of iron, 500 being American and 300 Scotch, were transferred from the dock at Buffalo to two schooners, and the bills of lading given by the schooners stated that the 500 tons of American iron were the cargo of canal boats of the same name as those on which the iron had been shipped at Elizabethport, and it appeared that both the American and Scotch iron transferred to the schooners was consigned to Thomas J. Pope & Brother, care National Exchange Bank, Milwaukee, Wisconsin. It was further shown that, about July 15, the two schooners above mentioned landed at Milwaukee 500 tons American iron and 300 tons of Scotch iron for the consignees mentioned in the bills of lading, and the iron was delivered to the defendant in error, and it was conceded that

rescission of a contract, yet in cases of sales by sample it has in many cases, as seen above, been held that the vendee could rescind if the bulk did not correspond with the sample. But the law is laid down by Mr. Benjamin "that in a sale of goods by sample the vendor warrants the quality of the bulk to be equal to that of the sample." Benj. Sales, $909.

"A sale by sample, properly so called, is merely a particular case of a sale by description. *** If it turns out that the sample does not truly represent the bulk, the purchaser may reject the goods either before the delivery or (if the time for inspection as agreed on is subsequent to delivery) after delivery, provided the inspection is made in due time, and the rejection intimated at once. But in either case the purchaser may (if he does nothing to waive his objection) accept the goods tendered and, treating the stipulation as collateral, bring his action upon the warranty. This is at least the practical result of the cases." Campbell, Sales, 305. See Heilbutt v. Hickson, L. R. 7 C. P., 438 (an elaborate discussion); Johnson v. L. & Y. R. Co., 3 C. P. Div., 499: Lomi v. Tucker, 4 C. & P., 15; Parker v. Palmer, 4 B. & Ald., 387.

ОСТ TERM,

the 300 tons of Scotch iron was the same which had been sold by the plaintiffs in error to the defendant in error and shipped to said consignees for him.

in error introduced the deposition of James E. Pope, one of the plaintiffs in error, in which he In addition to this evidence, the defendant testified as follows: "There is a suit pending betweeen my firm, as plaintiff, and the Coplay Iron Company, as defendant, relating to the American Iron shipped to E. P. Allis & Co." copy of the complaint in the suit, sworn to by As an exhibit to this deposition there was a James E. Pope, from which it appeared that the action was brought to recover, of the Coplay Iron Company, damages for the breach of a contract by which that company warranted that a certain 500 tons of iron, sold by it to the plaintiff in said suit, as No. 1 extra iron, was of that quality; and it clearly appeared from the complaint referred to, that one of the facts on which the cause of action was based was that the 500 tons of iron sold and shipped by the plaintiffs in error to the care of the National Exchange Bank, for the defendant in error, as No. 1 extra American iron, was the identical iron delivered for him to the bank at Milwaukee, and which he had purchased and paid for.

sive evidence offered to show that the iron We therefore repeat that there was persua

English courts, it is believed, would construe words
of a descriptive nature as raising a condition pre-
cedent, when in case of the sale of an ascertained
article the same words would be construed as a
warranty merely. So in sales by sample; in some
cases, depending on the condition or situation of
the goods, there is held to be merely a warranty
cases the correspondence is held to be a condition
precedent.
that the bulk shall equal the sample, while in other

sale by description and a sale with warranty of
quality has no sound basis in principle, and in ap-
Our own view is that the distinction between a
plication tends to confusion.

where goods are inspected by the vendee on the one hand, and all other cases on the other If adopted the line should be drawn between cases hand. Where goods are actually inspected the warranty may be regarded as collateral and not of the essence of the contract. All other sales are in their essence sales by description. This is true whether the article is yet to be made or is stored next door, whether it is to be separated from a mass or is concealed in a box in the presence of the vendee. A The American authorities sustain the right of re-equally true where the property is yet to be made, scission in sales by sample where the bulk does not where it is sold " to arrive," either a definite part sale by sample is a sale by description and this is correspond, without making distinction. See prin- or indefinite part, or the whole, of a cargo, or where cipal case supra; also Brigg v. Hilton, 10 Daly, 292; it is stored in a warehouse, already ascertained but Gill v. Kaufman, 16 Kan., 571. not inspected.

Conclusions.

In Massachusetts, Iowa and a large number of other States breach of warranty of quality is held to be sufficient ground for rescission of a contract of sale. The law in these States is believed to be in much the most satisfactory state. Distinctions of great complexity and of an almost inappreciable fineness between executory and executed con

class of cases under consideration is stated in gen-
eral terms to exist in sales by sample, in sales of an
In Pope v.Allis, supra, the right of rescission in the
article not in existence, and in sales of an article
not ascertained.

(12 Wheat.), 183, bk. 6, 594, are such as to render it
doubtful how far the language
The facts in the case of Thornton v. Wynn, 2 U. S.

tracts, between descriptions and warranties, etc., be considered of binding authorit and a decisio

are avoided. And aside from the practical advantages, the law in these States is based upon sound principles. See quotations above from cases in Massachusetts and Iowa.

In England a breach of warranty of quality in the sale of a specific ascertained article, whether inspected by the vendee or not, does not authorize a rescission. A failure to comply with a description, compliance being a condition precedent, does authorize a rescission. This doctrine, although often laid down in general terms, is believed to have no relation to a sale where goods are ascertained and

actually inspected by the vendee. The question, description or warranty, is determined rather by the circumstances than by the precise words used. In fact, in a sale of goods not in esse, for instance, the 896

by this court upon the question of the right of a vendee to rescind a sale of a specific ascertaine article, whether inspected or not, when the article is warranty, will be awaited with interest. The weight of authority is probably against such right. But if found not to correspond with the description er the right exists in all cases of sale by sample it is difficult to see why it should not exist in cases of sale by description or warranty of quality where the article is not inspected.

Other remedies of vendee.

Lead. Cases, 1, the annotator says: 'It is settled by Street v. Blay, 2 B. & Ad., 456, and Poulton v. Latti more, 9 B. & C., 259, where an article is warranted and the warranty is not complied with, the vendet

"In the note to Cutter v. Powell, in 2 Smith's

[371]

[369]

tiffs in error was stacked, shipped, between | the 300 tons of Scotch iron was the same which
April 28 and May 12, at Elizabethport, on five | had been sold by the plaintiffs in error to the
canal boats, whose names are given, 500 tons defendant in error and shipped to said con-
of American iron, consigned to Thomas J. signees for him.
Pope & Brother, care National Exchange Bank,
Milwaukee, Wsconsin, and to be transported
to Milwaukee by the river, canal and lakes;
that about the same time there was shipped to
the same consignees, and to the care of the same
bank, the 300 tons of Scotch iron, which had
been sold by the plaintiffs in error to the de-
Cendant in error.

It was further shown that on June 9 and 15
following, 800 tons of iron, 500 being American
and 300 Scotch, were transferred from the dock
at Buffalo to two schooners, and the bills of
lading given by the schooners stated that the
500 tons of American iron were the cargo of
canal boats of the same name as those on which
the iron had been shipped at Elizabethport, and
it appeared that both the American and Scotch
iron transferred to the schooners was consigned
to Thomas J. Pope & Brother, care National
Exchange Bank, Milwaukee, Wisconsin. It
was further shown that, about July 15, the two
schooners above mentioned landed at Milwau-
kee 500 tons American iron and 300 tons of
Scotch iron for the consignees mentioned in the
bills of lading, and the iron was delivered to
the defendant in error, and it was conceded that

rescission of a contract, yet in cases of sales by sam-
ple it has in many cases, as seen above, been held
that the vendee could rescind if the bulk did not
correspond with the sample. But the law is laid
down by Mr. Benjamin "that in a sale of goods by
sample the vendor warrants the quality of the bulk
to be equal to that of the sample." Benj. Sales,
§ 909.

"A sale by sample, properly so called, is merely a
particular case of a sale by description. *** If it
turns out that the sample does not truly represent
the bulk, the purchaser may reject the goods either
before the delivery or (if the time for inspec-
tion as agreed on is subsequent to delivery) after
delivery, provided the inspection is made in due
time, and the rejection intimated at once. But in
either case the purchaser may (if he does nothing
to waive his objection) accept the goods tendered
and, treating the stipulation as collateral, bring his
action upon the warranty. This is at least the prac-
tical result of the cases." Campbell, Sales, 305.
See Heilbutt v. Hickson, L. R. 7 C. P., 438 (an elabo-
rate discussion); Johnson v. L. & Y. R. Co., 3 C. P.
Div., 499: Lomi v. Tucker, 4 C. & P., 15; Parker v. Pal-
mer, 4 B. & Ald., 387.

|

In addition to this evidence, the defendant in error introduced the deposition of James E. Pope, one of the plaintiffs in error, in which he testified as follows: "There is a suit pending betweeen my firm, as plaintiff, and the Coplay Iron Company, as defendant, relating to the American Iron shipped to E. P. Allis & Co." As an exhibit to this deposition there was a copy of the complaint in the suit, sworn to by James E. Pope, from which it appeared that the action was brought to recover, of the Coplay Iron Company, damages for the breach of a contract by which that company warranted that a certain 500 tons of iron, sold by it to the plaintiff in said suit, as No. 1 extra iron, was of that quality; and it clearly appeared from the complaint referred to, that one of the facts on which the cause of action was based was that the 500 tons of iron sold and shipped by the plaintiffs in error to the care of the National Exchange Bank, for the defendant in error, as [370]) No. 1 extra American iron, was the identical iron delivered for him to the bank at Milwau kee, and which he had purchased and paid for.

We therefore repeat that there was persua sive evidence offered to show that the iron

English courts, it is believed, would construe words of a descriptive nature as raising a condition precedent, when in case of the sale of an ascertained article the same words would be construed as a warranty merely. So in sales by sample; in some cases, depending on the condition or situation of the goods, there is held to be merely a warranty that the bulk shall equal the sample, while in other cases the correspondence is held to be a condition precedent.

Our own view is that the distinction between a sale by description and a sale with warranty of quality has no sound basis in principle, and in application tends to confusion.

cases on the other

If adopted the line should be drawn between cases where goods are inspected by the vendee on the one hand, and all other hand. Where goods are actually inspected the warranty may be regarded as collateral and not of the essence of the contract. All other sales are in their essence sales by description. This is true whether the article is yet to be made or is stored next door, whether it is to be separated from a mass or is concealed in a box in the presence of the vendee. A sale by sample is a sale by description and this is The American authorities sustain the right of re-equally true where the property is yet to be made scission in sales by sample where the bulk does not where it is sold to arrive," either a definite part correspond, without making distinction. See prin- or indefinite part, or the whole, of a cargo, or where cipal case supra; also Brigg v. Hilton, 10 Daly, 292; it is stored in a warehouse, already ascertained but Gill v. Kaufman, 16 Kan., 571. not inspected.

Conclusions.

In Massachusetts, Iowa and a large number of other States breach of warranty of quality is held to be sufficient ground for rescission of a contract of sale. The law in these States is believed to be in much the most satisfactory state. Distinctions of great complexity and of an almost inappreciable ineness between executory and executed contracts, between descriptions and warranties, etc., are avoided. And aside from the practical advantages, the law in these States is based upon sound principles. See quotations above from cases in Massachusetts and Iowa.

In England a breach of warranty of quality in the sale of a specific ascertained article, whether inspected by the vendee or not, does not authorize a rescission. A failure to comply with a description, compliance being a condition precedent, does authorize a rescission. This doctrine, although often laid down in general terms, is believed to have no relation to a sale where goods are ascertained and actually inspected by the vendee. The question, description or warranty, is determined rather by the circumstances than by the precise words used. In fact, in a sale of goods not in esse, for instance, the

In Pope v.Allis, supra, the right of rescission in the class of cases under consideration is stated in general terms to exist in sales by sample, in sales of an article not in existence, and in sales of an article not ascertained.

The facts in the case of Thornton v. Wynn, 25 U.S. (12 Wheat.), 183, bk. 6, 594, are such as to render it doubtful how far the language already quoted may be considered of binding authority; and a decision by this court upon the question of the right of a vendee to rescind a sale of a specific ascertained article, whether inspected or not, when the article is found not to correspond with the description or warranty, will be awaited with interest. The weight of authority is probably against such right. But if the right exists in all cases of sale by sample it is difficult to see why it should not exist in cases of sale by description or warranty of quality where the article is not inspected.

Other remedies of vendee.

"In the note to Cutter v. Powell, in 2 Smith's Lead. Cases, 1, the annotator says: "It is settled by Street v. Blay, 2 B. & Ad., 456, and Poulton v. Latti more, 9 B. & C., 259, where an article is warranted and the warranty is not complied with, the vendes

shipped at Elizabethport, for the defendant in | of the facts stated. Studdy v. Sanders, 2 Dow.
error at Milwaukee, was the identical iron & Ry. 347; De Whelpdale v. Milburn, 5 Price,
landed at Milwaukee and received by him. The 485; Central Bridge v. Lowell, 15 Gray, 106;
assignments of error, based on the contention
that there was no such evidence, must there-
fore fall.

Bliss v. Nichols, 12 Allen, 443; Elliott v. Hay-
den, 104 Mass. 180; Cook v. Barr, 44 N. Ÿ.
156; Taylor, Ev. § 1753, 7th ed.; Greenl. Ev.
§§ 552, 555.

3. The bill of exceptions shows that the complaint above mentioned, in the suit of the plain- When the averment is made on information tiffs in error against the Coplay Iron Company, and belief, it is nevertheless admissible as eviwas sworn to by James E. Pope; that it con-dence, though not conclusive. Lord Ellentained an averment, on information and belief, borough, in Doe v. Steel, 3 Campbell, 115. The touching the quality of the iron in controversy authority cited sustains the proposition that the in this suit, and that the plaintiffs in error asked fact that the averment is made on information the court, on the trial of this case, to charge the and belief, merely detracts from the weight of jury that such complaint was not evidence of the testimony; it does not render it inadmisany facts therein stated on information and be- sible. The charge given by the circuit court lief. The court refused the charge, but in- on this point, therefore, deprived the plaintiffs structed the jury that, in determining what in error of no advantage to which they were weight as an admission the complaint should entitled. have, they might consider the fact that the allegation in relation to the quality of the iron in question was made on information and belief. The plaintiffs in error having excepted at the trial, now assign as error the refusal of the court to give the charge requested. We think the court did not err in its refusal.

When a bill or answer in equity or a pleading in an action at law is sworn to by the party, it is competent evidence against him in another suit as a solemn admission by him of the truth

has three courses, any one of which he may pursue: | (1) He may refuse to receive the article at all; (2) he may receive it and bring a cross action for the breach of the warranty; (3) he may, without bringing a cross action, use the breach of warranty in reduction of damages in an action brought by the vendor for the price.'*** The second and third propositions of this learned author are indisputable and have received the sanction of this court." Lyon v. Bertram, 61 U. S., 149, bk. 15, 850. The court proceeds to say that the first proposition is an open question. But see first part of this note.

4. The assignment of error mainly relied on
by the plaintiffs in error is that the court re-
fused to instruct the jury to return a verdict
for the defendants. The legal proposition upon
which their counsel based this request was that
the purchaser of personal property, upon breach
of warranty of quality, cannot, in the absence
of fraud, rescind the contract of purchase and
sale and sue for the recovery of the price. And
they contended that, as the iron was delivered
to defendant in error either at Coplay or Eliza-

Harding, 49 N. Y., 321; Day v. Pool, 52 N. Y., 416;
Gaylord Mfg. Co. v. Allen, 53 N. Y., 515; Parks v.
Morris Tool Co., 54 N. Y., 586; Gurney v. Atlantic,
etc., R. Co., 58 N. Y., 358; Gautier v. Douglass, etc.,
Co., 13 Hun, 514: Marshuetz v. McGreevy, 23 Hun,
408; Walling v. Schwartzkopf, 44 N. Y. Super. Ct.,
576; Marcus v. Thornton, Id., 411; Dounce v. Dow,
64 N. Y., 411: McParlin v. Boynton, 71 N. Y., 604;
Bliss v. Locke, 9 Daly, 526; Provenzano v. Thayer
Mfg. Co., 9 Daly, 90; Bach v. Levy, 50 N. Y. Super.
Ct., 519.

Where there is a warranty as to quality, in a sale of
chattels-although on inspection at the time of sale
if the property sold does not answer the warranty
it may still be retained by the vendee and the sale
affirmed, and he may sue upon the warranty.
Houghton v. Carpenter, 40 Vt., 588.
An exception is noticed in some cases where the
defect was known to the purchaser or readily dis-
coverable. Henshaw v. Robbins, 9 Met., 83; Van-
dewalker v. Osmer, 65 Barb., 556; Benj., Sales, 8 616.
Where no exception applies, the warranty is an
independent contract and may be sued on when
broken, like any other violated contract. Gilson v.
Bingham, 43 Vt., 410, per Veazey, J.; Pennock v.
Stygles, 54 Vt., 229, a sale by sample.

The second and third propositions are still in ac-
cord with the current of authority, although not
universally admitted. In some of the cases it seems
to be held that where the vendee has the right of
rescission and fails to exercise it he waives his right
to other remedies against the vendor. Some of the
older cases in England hold this doctrine. See Gri-
maldi v. White, 4 Eep., 95. The law may be regarded
as settled in England, however. In Benjamin on
Sales (8 1351) the second proposition is said to
need no authority-that it is taken for granted. As
to the third proposition, in England before the
Judicature Acts the vendee could set up defective
quality in diminution of price, but he could not
claim special or consequential damages except in
The offer to return must be within a reasonable
across action. Mondel v. Steel, 8 M. & W., 858. See time and must be unconditional. Use of property
Davis v. Hedges, L. R. 6 Q. B., 657. This was changed after offer to return is inconsistent. Reasonable
by statute. The English cases, so far as these reme-time is a question for jury. Churchill v. Price, 44
dies are concerned, seem to make no distinction be- Wis., 544.
tween sales by description or sales with warranty.
In this country as a general rule the vendee may
have the same remedy by way of recoupment on set-
off as by cross action. This question is so largely
determined by statute that a citation o the au-
thorities would be of little value.
A more important question is, Does the vendee, of goods or recoup in action for purchase money
where he has the right to return the goods, or, in after he has accepted them, see further Tomlinson
cases of executory sales, reject them, waive all rem-
edy by accepting and using them? When the de- 573; Youghiogheny Iron Co. v. Smith, 66 Pa. St., 341
fects in the goods are patent and obvious to the Lewis " Rountree, 78 N. O., 323; Perley v. Balch, 23
fenses, where the purchaser has a full opportunity Pick., 283; Vincent v. Leland, 100 Mass., 432; Douglass
for examination and knows of such defects, he Axe Mfg. Co. v. Gardner, 10 Cush., 88; Taylor v. Cole,
must, either when he receives the goods or within 111 Mass., 363. Compar, Owens v. Sturges, 67 Ill.,
reasonable time thereafter, notify the seller that the 366; Hollfield v. Black, 2 West. Rep., 601; Kent v.
otherwise the defects will be deemed waived."
ths are not accepted as fulfilling the warranty: Friedman, 1 Cent. Rep., 718; Briggs v. Hilton, 1 Cent.
Locke v. Williamson, 40 Wis., 377. See Ney v. Iowa
Rep., 307.
City Alcohol Works, 51 Iowa, 128.

a

The question has been much discussed in New York. See Sprague. Blake, 20 Wend., 61; Nargousy. Stone, 5 N. Y., 73; Muller v. Eno, 14 N. Y., 602; Reed v. Randall, 29 N. Y., 358; McCormick v. Sarson, 45 N. Y., 265; Dutchess Co. v.

115 U.S.

return it within reasonable time or may keep it and
Where property is not as warranted vendee may
recoup damages in action for price. Warder v.
Fisher, 48 Wis., 338; Smith v. Mayer, 8 Col., 207.
In support of the principle that the buyer may
maintain action for breach of contract as to quality

v. Quigley, 5 Del., 168; Polhemus v. Heiman, 45 Cal.,

If, however, a sale is held to be on a condition pregoods with knowledge that the condition has not cedent, is not the acceptance or retention of the Beed complied with, a waiver of the condition? And if the condition is waived, should the vendee or principal have any remedy?

397

[371]

[372]

bethport, and the sale was completed thereby, | to the carrier for the purchaser, the latter is not
the only remedy of the defendant in error was
by a suit upon the warranty.

It did not appear that at the date of the con-
tract the iron had been manufactured; and it
was shown by the record that no particular iron
was segregated and appropriated to the con-
tract, by the plaintiffs in error, until a short time
before its shipment, in the latter part of April
and the early part of May. The defendant in
error had no opportunity to inspect it until it
arrived in Milwaukee, and consequently never
accepted the particular iron appropriated to fill
the contract. It was established by the verdict
of the jury that the iron shipped was not of
the quality required by the contract. Under
these circumstances the contention of the plain-
tiffs in error is, that the defendant in error, al-
though the iron shipped to him was not what
he bought and could not be used in his busi-
ness, was bound to keep it, and could only re-
cover the difference in value between the iron
for which he contracted and the iron which
was delivered to him.

We do not think that such is the law. When the subject matter of a sale is not in existence or not ascertained at the time of the contract, an undertaking that it shall, when existing or ascertained, possess certain qualities, is not 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. Chanter v. Hopkins, 4 M. & W. 404; Barr v. Gibson, 3 M. & W. 390; Gompertz v. Bartlett, 2 E. & B. 849; Okell v. Smith, 1 Stark. N. P. 107; Notes to Cutter v. Powell, 2 Smith, Lead. Cas. 37, 7th Am. ed.; Woodle v. Whitney, 23 Wis. 55; Boothby v. Scales, 27 Wis. 626; Fairfield v. Madison Mfg. Co. 38 Wis. 346. See also Nichol v. Godts, 10 Exch. 191.

""

So, in a recent case decided by this court, it
was said by Mr. Justice Gray: A statement
(in a mercantile contract) "descriptive of the
subject matter or of some material incident,
such as the time or place of shipment, is ordi-
narily to be regarded as a warranty in the sense
in which that term is used in insurance and
maritime law; that is to say, a condition pre-
cedent upon the failure or non-performance of
which the party aggrieved may repudiate the
whole contract." Norrington v. Wright, 115 U.
S. 188 [Bk. 29, L. ed. 366]. See also Filley v.
Pope, 115 U. S. 213 [Bk. 29. L ed. 372].

And so, when a contract for the sale of goods
is made by sample, it amounts to an undertak.
ing on the part of the seller with the buyer, that
ali the goods are similar, both in nature and
quality, to those exhibited, and if they do not
correspond, the buyer may refuse to receive
them, or if received, he may return them in a
reasonable time allowed for examination, and
thus rescind the contract. Lorymer v. Smith,
1 Barn. & C. 1; Magee v. Billingsley, 3 Ala. 679.
The authorities cited sustain this proposi-
tion, that when a vendor sells goods of a speci-
fied quality but not in existence or ascertained,
and undertakes to ship them to a distant buyer,
when made or ascertained, and delivers them

bound to accept them without examination. The mere delivery of the goods by the vendor to the carrier, does not necessarily bind the vendee to accept them. On their arrival he has the right to inspect them to ascertain whether they conform to the contract, and the right to inspect implies the right to reject them if they are not of the quality required by the contract. The rulings of the circuit court were in accordance with these views.

We have been referred by the plaintiffs in error, to the cases of Thornton v. Wynn, 12 Wheat. 184 [25 U. S. bk. 6, L. ed. 595], and Lyon v. Bertram, 20 How. 149 [61 U. S. bk. 15, L. ed. 847], to sustain the proposition that the defendant in error in this case could not rescind the contract and sue to recover back the price of the iron. But the cases are not in point. In the first, there was an absolute sale with, warranty and delivery to the vendee, of a specific chattel, namely: a race horse; in the second, the sale was of a specified and desig nated lot of flour, which the vendee had accepted, and part of which he had used, with ample means to ascertain whether or not it con formed to the contract.

The cases we have cited are conclusive against the contention of the plaintiffs in error The jury has found that the iron was not of the quality which the contract required, and or that ground the defendant in error, at the first opportunity, rejected it, as he had a right to do His suit to recover the price was, therefore, wel brought.

Other errors are assigned, but, in our opinion they present no ground for the reversal of the judgment and do not require discussion. Judgment affirmed.

True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. S Cited-117 U. S. 129.

WALTER H. SMITH, Appt.,

*1. Under a deed of trust, covering land in the Dis trict of Columbia, made by a debtor,to two grantee their heirs and assigns, to secure the payment of promissory note, with power by which deed th grantees were empowered, on default, to sell th land at public auction, "on such terms and cond tions, and at such time and place, and after suc signs or heirs," should deem advantageous an previous public advertisement," as they, "their a proper, and to convey the same in fee simple to th purchaser, a sale was had by public auction, unde a notice of sale, signed by both of the trustees, an duly published in a newspaper; but at the sale onl one of the trustees was present. The proceeding at the sale were fair, both of the trustees united for setting the sale aside; Held, that the absen a dced to the purchaser, and no ground appeare from the sale, of one of the trustees, was not a su cient reason, of itself, for setting aside the sale against the former owner of the land.

*Head notes by Mr. Justice BLATCHFORD.