When personal property is sold by sample, or upon a representation as to quality, which does not amount to an express warranty, tbe purchaser is given a reasonable opportunity' for inspection and examination, and if not according to tbe sample or representation, be may reject them wben tendered, or return them after delivéry, provided be acts within a reasonable time, and can recover anything of'value parted with as tbe consideration for tbe trade.
What is a reasonable time is dependent upon conditions and circumstances, as in some cases tbe defect may be discovered by inspection, while in others trial and use would be necessary. If tbe purchaser retains the property, after such reasonable opportunity for discovering tbe defect has béen afforded him, be cannot, under ordinary circumstances, be beard to complain, and it will be assumed that be has accepted tbe property as a compliance with the contract of sale.
These positions are fully sustained by the case of Parker v. Fenwick, 138 N. C., 209.
If, however, there is an express warranty as to quality, there is much conflict of authority as to tbe rights of the purchaser. All seem to be agreed, if tbe warranty is false, that so long as tbe contract is executory tbe purchaser may, upon discovery of the defect, rescind the contract and recover anything paid, out or 'parted with as tbe consideration for it, or he may accept and recover damages for breach of the warranty; but if the contract is executed there is a difference of opinion as to tbe rights of tbe purchaser, a majority of tbe courts bolding in such case that his remedy is on tbe warranty.
*462Tbe doctrine is stated in 35 Cyc., 434, witb ample citation to support tbe text.
“In tbe absence of an agreement giving bim tbe right to return tbe goods, it is tbe rule in most jurisdictions that tbe buyer in an executed contract of sale of goods cannot on a breach of warranty return tbe goods, bis remedy in such case being on tbe warranty. On tbe other band, in other jurisdictions it has been held that tbe buyer may resort to either remedy, and bis right is recognized generally when the sale is executory.”
Among tbe courts bolding that tbe purchaser may resort to either remedy are those of California, Iowa, Kentucky, Maine, Maryland, Massachusetts, Missouri, Nebraska, Oklahoma, and Wisconsin; and while tbe question has not been discussed fully and tbe distinctions noted in our reports, we have at least three cases in which it is either held that the purchaser may pursue either remedy or tbe right is assumed to exist.
In Kester v. Miller Bros., 119 N. C., 476, tbe plaintiffs sold tbe defendants an engine, witb a warranty as to quality, and after acceptance of tbe engine and its use it was discovered that it was defective, and speaking of tbe rights of tbe purchaser, tbe Court says:
“Tbe defendants, when they discovered tbe defect in tbe engine, bad tbe right to reject it and bring an action against tbe plaintiffs for such damages as they bad sustained by reason of tbe plaintiffs’ nonperformance of tbe contract, if they chose so to do; or they could have kept tbe engine and set up by way of counterclaim against plaintiffs’ demand for tbe contract price tbe breach of warranty in reduction.”
Again in Manufacturing Co. v. Gray, 124 N. C., 325 :
“If tbe property purchased is present and may be inspected, tbe warranty is collateral to tbe contract and tbe title to-the property immediately passes to tbe purchaser. And if tbe warranty is false, the purchaser’s redress is an action for damages upon tbe warranty. But if tbe property is not present, where it might be inspected, tbe warranty may be treated as a condition precedent, as 'well as a warranty. And if tbe property purchased is not what it was warranted to be, tbe purchaser, upon *463delivery of tbe property, may treat tbe warranty as a condition precedent and refuse to receive or accept tbe property, and notify tbe party from whom be purchased; and if be bas not paid for tbe property, be need’not do so; and if be bas paid tbe purchase money or any part of it, be may recover tbe money so paid from tbe seller. Tbe purchaser is not compelled in all cases to reject tbe property, at once, upon its receipt. If it is machinery, be bas a reasonable time to operate tbe machinery for tbe purpose of testing it.”
And in Critcher v. Porter Co., 135 N. C., 547, which was dealing with a contract for tbe sale of an engine with warranty:
“If tbe plaintiff bad, immediately upon tbe receipt of tbe engine, ascertained that it did not develop 25 horse-power as warranted' to do, rejected it, or, as be expresses it, ‘put it aside;’ notifying tbe defendant thereof, it is clear that be would have been entitled to recover tbe amount paid and to a cancellation of bis notes and tbe trust deed, together with such damage as be sustained and which were within tbe contemplation of tbe parties in bis effort to use it.”
Tbe use of tbe word “immediately” impairs tbe force of tbe last quotation, but when considered in connection with the context, it appears that tbe defect — -the failure to produce certain power — would not appear at once, but only after delivery and by use.
Tbe rule is, however, further modified when there is a warranty and an agreement to return tbe property if not as warranted.
This qualification is stated to be that “Tbe contract of warranty may, however, provide that if tbe article fails to fulfill tbe warranty, it shall be returned to tbe seller, and in such case the condition is part of tbe warranty and must be complied with, and tbe fact that within tbe time stipulated notice of dissatisfaction is given will not relieve tbe buyer from tbe conditions of tbe contract. Tbe condition may be that tbe article shall be deemed to fulfill tbe warranty unless returned within a specified time. Under such conditions, if tbe buyer retains tbe goods be cannot avail himself of tbe breach, either in an action fqr dam*464ages or by way of recoupment or counterclaim. If tbe provision óf tbe contract is not imperative, but merely permits tbe buyer to return tbe property, be may, at bis election, resort to tbat remedy or bis remedy on tbe warranty, tbe remedies being cumulative. So, too, tbe contract may impose on tbe seller tbe duty of remedying defects or taking back tbe machine, in wbicb case it is not incumbent on tbe buyer to return tbe machine in order to avail himself of tbe breach of warranty as a defense in an action for tbe price. Tbe purchaser is entitled to a reasonable time within wbicb to test tbe articles purchased for defects, and to return them if not as warranted. If tbe contrast specifies tbe time within wbicb return .shall be made, a compliance with tbe contract in this regard is necessary.” 35 Cyc., 437 et seq. '
It is tbe same principle applied in Manufacturing Co. v. Lumber Co., 159 N. C., 510.
It seeins, therefore, to be settled tbat when there is an express warranty in tbe sale or exchange of personal property, and it is a part of tbe contract of sale tbat tbe property is to be returned within a specified time, if not as warranted to be, tbat tbe complaining party can have no redress by reason of tbe warranty, in tbe absence of fraud, without offering to return tbe property within tbe time named.
If so, tbe charge of bis Honor is erroneous. Tbe plaintiff and defendant agree tbat there was a contract between them for tbe exchange of rnulesj and tbe only differences between them as to tbe terms of tbe contract are, first, tbe plaintiff says tbe defendant warranted tbe mules to be sound, while tbe defendant says be warranted them to be sound as far as be knew; second, tbe plaintiff says it was agreed tbat if tbe mules exchanged were not as warranted to be, and either party was dissatisfied, they would rescind tbe contract, each party taking tbe mules be originally owned, while tbe defendant says tbat tbe time within wbicb this right to rescind tbe contract could be exercised was restricted to one week.
Tbe plaintiff did not offer to return tbe mules be got from tbe defendant until after tbe expiration of one week from tbe trade.
*465Tbe charge given presents only tbe contentions of tbe plaintiff upon tbis difference as to tbe terms of tbe contract, bis Honor telling tbe jury, in tbe absence of fraud, if tbey found from tbe evidence tbat tbe defendant guaranteed tbe mules to be sound, wben tbey were not, tbey would answer tbe first issue, as to tbe ownership of tbe mules, “Yes,” which, if ordinarily a correct statement of tbe law, would not be true if tbe parties by agreement bad limited tbe time within which tbe contract could be rescinded to one week.
Tbe charge is predicated upon tbe assumption tbat the plaintiff’s version of tbe contract is correqt, and ignores tbe evidence of tbe defendant, which be bad tbe right to have considered'by the jury.
It is unnecessary to consider tbe other exceptions, as a new trial is ordered on account of tbe error pointed out.
New trial.