delivered the opinion of the Court.
■ This was an action of assumpsit by appellees to recover the contract price of 150 July cheese sold to appellant on the 11th of September, 1894. Appellant paid into court as a tender $178.S5-and defended against the balance of the claim upon the ground thfit- there was a breach of warranty ais to quality of. the cheese. .
The jury returned a verdict for appellees and fixed their damages at $370.01, which included the $178.85 tendered. The court overruled the motion for a new trial and entered judgment upon the verdict.
Appellant seeks a reversal because the verdict is against the evidence and because the court erred in giving certain instructions and in refusing to give certain others as offered.
'Appellees operate a cheese factory at the town of Harlan, a few miles from Eockford. Appellant conducts a wholesale grocery business at that city and prior to the purchase out of which this controversy arose had received four lots of cheese from appellees and had sold them with satisfaction to its trade. A few days prior-to the purchase in question its president and secretary visited the factory. They were taken into the curing room by the superintendent and were there shown a large number of cheese stored upon racks extending to the ceiling. By means of a small semicircular steel instrument called a trier, which may be thrust into a cheese, several were tested. There is some conflict in the testimony as to what was said about the cheese tested upon *611that occasion; but no purchase was then made. About a week afterward one of the appellees called at appellant’s place of business and closed a deal for 150 cheese at nine cents per pound. Appellant’s officers, who made the purchases, were the same ones who visited the factory and witnessed the testing made by the superintendent.
Although it is contended that the sale was made by appellees with an express warranty as to the quality of the cheese, the evidence does not support such contention. Stevenson, on his first visit, when the July cheese was mentioned, insisted upon appellant’s officers visiting the factory and making a personal examination, which they did in his absence. They knew that there were not more than 200 July cheese at the factory, and that the 150 purchased would have to be selected from that number. There was room, therefore, for the contention of appellees for an application of the doctrine of caveat emptor. Of course there can be no application of that doctrine where there is an express warranty, or where the article is sold in bulk upon a sample. As we have said, we do not think an express warranty was proven. Nor can it be properly said the cheese was sold upon sample. It was not a sale where the purchaser had no opportunity for inspection. Upon the contrary, ample opportunity for inspection was given. No error therefore occurred in the giving of appellee’s fifth, sixth, seventh and tenth instructions.
The jury were instructed quite liberally for appellant and we do not think it has any just ground for complaint because of the action of the court in refusing some and in modifying other instructions offered.
The jury seems to have allowed deductions for several cheese which the evidence shows were bad.
To the contention of appellant that the court erred in refusing to suppress the depositions of two resident witnesses, Wilson and McMillan, for the reason that they were taken under a dedimus potestatem,, it may be said that appellant was not in a position to urge such an objection. Its attorney appeared before the officer who took the depo*612sitions and cross-examined the witnesses. That fact, and the further one that it was stipulated the witnesses should he examined before that officer, was a waiver of all formalities touching the dedimus.
We see no just ground for reversing the judgment; it is affirmed.