delivered the opinion of the court.
The theory of plaintiff in error seems to be, that there was a sale of the bottles in presentí at Chicago; that the risk of breakage while the goods were in transit from Chicago was with defendant in error, and that the failure of the buyer to return, or offer to return the goods is a sufficient acceptance of them, amounting to an absolute sale; and accordingly the action is brought for the balance of the purchase price of the bottles. The theory of defendant in error’s defense does not specifically deny this position, and so far as mere pleading is concerned, the amount claimed by plaintiff in error is conclusively admitted by the Brewing Company’s withdrawal of the general issue. As a question of mere pleading, defendant in error’s defense is payment, accord and satisfaction, and recoupment, based on an implied promise that the bottles shipped should be fit for bottling export beer. Plaintiff in error did not choose to rely on the admissions as made by the pleadings, but introduced nearly ail of the correspondence in evidence, thereby showing what the actual contract was, thus widening the issue, *169and enabling the defendant in error to litigate what otherwise it could not have litigated except by having the general issue in the record. This explains the supposed anomaly of the verdict, when it is seen that plaintiff’s claim, of $445.50 was admitted, and that defendant’s claim, at most amounted to $240, so that there should have been a verdict for the plaintiff for the difference. So long as the jury found a verdict at all, they must have regarded the plea of accord and satisfaction as not proven; but under all of the evidence they must also have found that the 17,000 bottles defendant did not return, were not worth the purchase price per gross, agreed upon. The reasonable value of the 17,000 bottles was not made an issue by either -the pleadings or the instructions, yet the evidence showed that these bottles could not be used by the defendant, and that they were rejected when taken from the car; and the result was that the jury must simply have refused to find that the rejected bottles were of the value that the contract provided for. In this the jury acted unadvisedly, but the real fault was in a misconception of the remedy applied by both parties to the facts proven. Plaintiff in error was wrong in assuming a sale in presentí; and the defendant in error was wrong in presenting the matters of recoupment for the consideration of the jury at all; and this leads us to examine the contract of sale, evidenced by correspondence.
The essential elements of the contract are found in the first six letters and telegrams of the parties and in the act óf shipping the bottles to Belleville on July 6th. The entire correspondence considered, the contract was not for a carload of bottles, but for so many bottles out of a car-load, “ as ckn be used.” The seller brought the goods to the purchaser, who was authorized out of the bulk to appropriate some of the goods to the contract and to reject others; this authority contemplated both separation and selection by the buyer, so that in transit from Chicago the bottles were the property of the plaintiff in error, and the risk of breakage was his. 2 Schouler’s Personal Property, Secs. 256-259. Under the contract, 43,235 bottles became *170an executed sale by the act of the buyer; up to that time the contract was executory.
What defendant should have done, in respect to giving notice to plaintiff that it had rejected 17,000 bottles, is not in this record, because plaintiff himself, by his letter of July 10th (before the car had been unloaded), directed the setting aside of some bottles, and those set aside are not shown by the evidence to be other than the letter authorized. It is for this reason that the case of Barton v. Kane, 17 Wis. 38, has no application here.
In order to further dispose of the matters at issue in this case, it is to be noted that defendant contends that the expression, " for such as can be used,” is to be construed to mean such bottles as can be used by applying the steam test to them, because in the correspondence plaintiff mentions that-the subject of the sale is export beer bottles, and therefore plaintiff is bound by an implied warranty that the bottles were tit for that purpose. Plaintiff replies that the goods were second hand, and, as a matter of law, there can be no implied warranty in the sale of such goods. On the latter contention we express no opinion, the question being not necessarily involved in this record.
The expression, " such bottles as can be used,” means such bottles as defendant deemed good for use at the time its manager made the inspection and selection from the car. The excerpts from the manager’s testimony make it plain that he himself so understood the terms of the contract before there was any dispute between the parties. Defendant knew as much about bottles as the plaintiff; and if not, it undertook to select and inspect for itself, thereby relying on its own judgment, without requiring the stipulation now contended for as to pressure tests. It has always been held that on sales of personal property, where the purchaser inspects the goods for himself, even though the seller may know the purpose the buyer intends them for, the rule of caveat emptor applies, in the absence of fraud or an express warranty. Hight v. Bacon, 126 Mass. 10; Kohl v. Lindley, 39 Ill. 195; Cogel v. Kniseley, 89 Ill. 598. The distinctions *171are uniquely illustrated in Anson on Contracts. 2d Ed., *132, in a supposed sale of Dresden china. In the American note of Benjamin on Sales, Ed. 1888, pp. 626-8, appears this statement:
“It must be distinctly borne in mind, however, that this implied warranty of fitness does not arise fin the absence of fraud) when the buyer selects his own article on his own judgment, although the vendor (not a manufacturer) knows that it is intended for a particular use. If the purchaser gets the exact article he buys and buys the very thing he gets, he takes the risk of its fitness for the intended use.”
There is no pretense of fraud by either concealment or misrepresentation in this case, nor does the evidence show that plaintiff even knew the bottles were to be used for export beer. A sale of export beer bottles is a very different thing from a sale of bottles to be used for bottling export beer, particularly when the judgment of the buyer is the equal of the seller’s. It is not pretended that plaintiff did not send export beer bottles; the expression was a mere description of the kind of goods he had for sale; and defendant does not claim that the language created.an express warranty. See Vol. 15 Am. & Eng. Ency. of Law, p. 1235; also pp. 1231-1234.
The action was rightfully brought, in so far as there is a declaration for 43,235 bottles sold, and that defendant is liable for that number of bottles, at the contract price, unless its pleas of payment or of accord and satisfaction have been proven in bar of the action. Defendant has not argued that the facts constitute a payment; and prima fade, the payment for 37,182 bottles is not a payment for 43,235 bottles, because the claim is liquidated. It may be that the facts warrant a claim of payment,' but defendant shows no reason for taking the case out of the ordinary rule, that the payment of a less amount is no consideration for foregoing the balance. The case of Jenks v. Burr, 56 Ill. 450, whether regarded as an authority on the plea of payment or on the plea of accord and satisfaction, was a matter of a claim disputed on the facts; here defendant *172admits all the facts that go to make its liability, and appeals to a certain construction of the admitted facts, to shield it from liability. This rule of law plaintiff may or may not have admitted in taking the money which was paid.
As to the plea'of accord and satisfaction it was interposed not only to the 6,000 bottles that defendant did not pay for according to the contract price, but also to the 17,000 bottles which it rejected. That the evidence did not even prove an accord and satisfaction for the 17,000 bottles, is too plain for discussion. Did it tend to prove the issue as to the 6,000 ? There had been between the parties no dispute as to the number of bottles that defendant" actually bought; there had been no dispute as to the sum actually due; defendant wrote a letter giving its version of the manner in which the bottles had been selected and afterward tested, and then directed that plaintiff draw a draft for that amount, which was done.
Defendant does not state in its letter that when it pays such a draft it shall extinguish all cause of action between the parties if plaintiff retains the money, and so it was not necessary for the plaintiff to have said at the time he took the money, that he would not accept it in full of all his demands. The money he got he was entitled to. In taking it, plaintiff in error got nothing but that to which he had a prior title and a prior right, and receiving that, he could not be receiving a satisfaction for something else. See Martin v. White, 40 Ill. App. 281. Except for defendant’s construction put on the contract, a cause of action existed in favor of plaintiff for the 6,000 bottles not paid for, and under the above quoted decisions his acquiescence in that construction of the law would not extinguish his cause of action under a plea of accord and satisfaction. For further decisions on the matters of this plea, see Van Dyke v. Wilder, 66 Vt. 579, Pottlitzer v. Wesson, 8 Ind. App. 472, and Fuller v. Kemp, 138 N. Y. 231, where the substance of the decision is that the proof must be clear and satisfactory that the condition of the payment of the money be insisted on, and it must not admit of the inference that the debtor *173might keep the money tendered in case he did not assent to the condition on which it was tendered. The letter written by defendant to plaintiff, in view of the fact that the claim was liquidated, was not of that explicit character as to extinguish plaintiff’s claim for the 6,000 bottles which were not paid for; it was defendant that needed this unquestioned evidence, and so it was not for the plaintiff to say that he would not accept the amount in full. As to the 17,000 bottles, they became a bailment in defendant’s hands, and so imposed on defendant the obligation of ordinary care. Colton v. Wise, 7 Ill. App. 395. And defendant itself recognized that fact ivhen it first started to set the bottles aside, instead of throwing them into the cult pile.
Whether defendant is liable in negligence or in trover for the actual value of these bottles is not properly in this case; or whether plaintiff shall elect to sue for money had and received in the sale of the bottles is not now before this court. It is sufficient to say that the latter view is not declared on by the declaration, and that the former vieivs can in no event be considered in this action of assumpsit.
In vieAv of Avhat has been said, defendant’s recoupment for the loss of the beer can neither be pleaded nor proven. It is not a legitimate cause of action against the plaintiff. The pleadings and the instructions in this case being at variance with the views herein expressed, the judgment is reversed and the cause remanded for a new trial.