would have been entitled to the full terms of two and three years' credit before an action could have been maintained against him. The question is, whether his refusal to perform his part of the agreement, as stated in the referee's report, gave the plaintiffs a right to withdraw their credit and bring their action at once.

In the case of Martin v. Fuller, 16 Vt. 108, the sale and credit seem to have been absolute, and the time of credit and the security agreed upon an after-consideration. In Ascutney Bank v. Ormsby, 28 Id. 721, it was held that the neglect and refusal of the defendant to furnish the securities when requested prevented him from claiming the benefit of the stipulated credit; that the plaintiff had the right, on such a refusal, to commence his action immediately and recover the balance due. It was held in Hale and Fish v. Jones, 48 Id. 227, that when there was an agreement to give time for payment upon the debtor's giving a note with surety, i such note is not given, the creditor may sue at once in book account or in general assumpsit.

It seems clear, upon the report, that the credit was not absolute, but conditional upon the defendant's giving a note secured by mortgage. As was said by Redfield, C. J., in Rice v. Andrews, 32 Vt. 691: "The security is the consideration for the credit, and when the one fails the other may lawfully be withdrawn." Doubtless, the cases of Eddy v. Stafford, 18 Id. 235, and Hale and Fish v. Jones, supra, are reconcilable upon this view.

In Ascutney Bank v. Ormsby, supra, the necessity of a demand for the agreed securities before action brought is recognized. We think, however, in this case that the defendant's refusal to take the property, and the plaintiffs' request that he should take it and pay for it as agreed, obviated the necessity of a formal demand for the note and mortgage before the action was commenced.

As the defendant had taken possession of the property, and the title thereto had vested in him, his refusal to give his notes therefor secured by mortgage, as promised, was a waiver of time in making his payments, and entitled the plaintiffs immediately to their action in general assumpsit for the price of the goods sold and delivered.

The judgment is affirmed.

VENDOR OF GOODS TO BE PAID FOR BY NOTE PAYABLE IN FUTURO, if Buch note is not given, may sue immediately for a breach of the special agreement, and recover the value of the goods as damages: Hanna v. Mills, 21 Wend. 90; 34 Am. Dec. 216, and note.

DREW v. EDMUNDS.

[60 VERMONT, 401.]

ACCEPTANCE OF OFFER WITHOUT OBJECTION OR CONDITION BINDS PARTY ACCEPTING, and the party making the offer has the right to understand that the acceptance was according to the terms of the offer.

AFFIRMATIONS OF VENDOR AS TO QUALITY OF ENGINE AND BOILER SOLD BY HIM CONSTITUTE WARRANTY that they are as described, when such affirmations are relied upon as the basis of the sale, and are so understood by the vendor.

DEFECT IN STEAM-CHEST IS NOT LATENT, where it is readily discoverable by taking off the cover.

PLAINTIFF WHO SUES TWO Defendants CANNOT DENY COUNTERCLAIM on the ground that it did not accrue to both, when he has always treated the deal as with both.

ASSUMPSIT. Plea, non assumpsit, and two pleas in set-off. The plaintiff had judgment for $120, and the defendants on their plea in set-off had judgment for $212.34, and judgment was entered for the defendants to recover of the plaintiff the balance, $92.34. The referee found that the defendants bought of Drew and his partner Forsaith, since deceased, a steam-engine and boiler, upon a printed description thereof, given to them by the sellers, and other representations, which are stated in the opinion. Other facts appear from the opinion. French and Southgate, for the plaintiff.

J. J. Wilson, for the defendants.

VEAZEY, J. When the plaintiffs got word that there was difficulty with the governor, they made a proposition to furnish another, with all the fittings, etc., and take back the old one, at a difference of forty-five dollars. The defendants accepted the offer without objection or condition. Whatever might have been the right of the defendants independent of this arrangement, we hold that having gone into it, they must stand by it. The plaintiffs had the right to understand, by the acceptance of their offer without notice of other claim, that the acceptance was according to the terms of the offer.

The plaintiffs are therefore entitled to recover the item of forty-five dollars, with interest thereon since April 1, 1881.

The plaintiffs insist that the defendants cannot maintain their claim in offset for several reasons: 1. That there was no warranty in the sale of the engine and boiler. The referee finds there was a warranty, and bases that finding on the statement in the printed slip (taken in connection with other findings) that the engine had been overhauled and put in

good working order, and was in good order, and complete in all its parts. It is further found that this description and representation constituted the basis of the purchase by the defendants, and were relied upon by them, as the plaintiff's well knew, and that they knew nothing about such property as to its value or quality, and had then had no experience in using it, and it did not appear that either of the defendants examined the engine and boiler before the purchase.

The findings are explicit that the defendant Edmunds, who made the purchase, told the plaintiffs that he had no knowledge of such property, and if he bought this engine and boiler he should rely upon the plaintiff's description of them; and that he also told the plaintiffs for what purpose he wanted them, which was the sawing of logs into lumber in a saw-mill. The plaintiffs were dealers in engines and boilers in Manchester, New Hampshire.

In Hogins v. Plympton, 11 Pick. 99, Shaw, C. J., said: "There is no doubt that, in a contract of sale, words of description are held to constitute a warranty that the articles sold are of the species and quality so described." Again, in Winsor v. Lombard, 18 Id. 60, the same learned judge said: "It is now held that, without express warranty or actual fraud, every person who sells goods of certain denomination or description undertakes, as part of his contract, that the thing delivered corresponds to the description, and is in fact an article of the species, kind, and quality thus expressed in the contract of sale."

This doctrine has been reasserted in many cases in Massachusetts and elsewhere. In this state, in Beals v. Olmstead, 24 Vt. 114, 58 Am. Dec. 150, it was held that when the vendor's statements form the sole basis of the sale, his declarations are ordinarily to be regarded as a warranty.

The referee finds that the engine was not in good order and complete in all its parts, nor had it been put in good working order, according to the printed description. There was therefore the positive affirmation that the article had certain qualities which the referee finds it did not have, and this affirmation was relied upon as the basis of the sale, and was so understood by the vendors. In Pasley v. Freeman, 3 Term Rep. 57, Buller, J., referring to the early cases of Cross v. Gardner, Carth. 90, 3 Mod. 261, and Medina v. Stoughton, 1 Ld. Raym. 593, Salk. 220, said: "It was rightly held by Holt, C. J., and has been uniformly adopted ever since, that an affirmation at the

time of a sale is a warranty, provided it appear in evidence to have been so intended." In determining whether it was so intended, Benjamin, in his work on sales, section 613, says: "A decisive test is, whether the vendor assumes to assert a fact of which the buyer is ignorant, or merely states an opinion or judgment upon a matter of which the vendor has no special knowledge, and on which the buyer may be expected also to have an opinion, and to exercise his judgment. In the former case there is a warranty; in the latter, not."

In view of all the facts in the report, we think it impossible to predicate error in the conclusion of the referee that there was a warranty.

It is further claimed that the breach found by the referee is in respect to a latent defect. An express warranty covers a latent defect. But we do not think the defect in the steamchest as found by the referee was a latent defect. It was readily discoverable, on taking off the cover, that the chest had been badly eaten by steam, and had been fixed up with red-lead or putty. It would seem that such a defect could not escape observation in overhauling an engine, as the plaintiffs said they had done. The defendants could not discover the defect, because not visible until the cover was removed, and they would have no occasion to take it off if in good order. They had the right to rely on the representation.

It is further claimed that the offset did not accrue to both defendants, and so must fall.

We see no good ground for severing the deal. It ran through several months, and the plaintiffs always treated it as deal with both defendants, and made their writ and specifications against both. They are in no situation to deny a counterclaim in the lawsuit in behalf of both.

Judgment reversed, and judgment for the defendants for $28.44, without costs.

REPRESENTATIONS BY VENDOR UPON WHICH HE INTENDS THAT VENDEE SHALL RELY, and upon which the latter does rely in making a purchase, amount to a warranty: Hahn v. Doolittle, 18 Wis. 196; 86 Am. Dec. 757; and see Ellis v. Andrews, 56 N. Y. 83; 15 Am. Rep. 382-386, note.

PATENT AND LATENT DEFECTS IN ARTICLE SOLD: See Roberts v. Jenkins, 21 N. H. 116; 53 Am. Dec. 178, note. In Tabor v. Peters, 74 Ala. 90, 49 Am. Rep. 804, it was held, on the sale of a churn, represented as a juniperwood churn with nickel-plated dasher, and which proved to be made of painted pine with polished iron dasher, that the defects were not so patent as to avoid the warranty.

PALMER V. VILLAGE OF ST. ALBANS.

[60 VERMONT, 427.]

LAW DOES NOT IMPUTE TO ONE MAN NEGLIGENCE OF ANOTHER unless the relation of master and servant exists between them. To charge one man with the negligence of another, it is not sufficient to show that the latter was, at the time, acting under the employment of the former, but it must be shown that such employment created between them the relation of master and servant. MUNICIPAL CORPORATION IS NOT LIABLE FOR INJURIES RESULTING FROM NEGLIGENCE OF ITS EMPLOYEE in piling tiles at the direction of its street commissioner in the corporation yard, when the corporation neither owned the tiles, nor had the custody or control of them; but the commissioner, taking advantage of his official position, was acting, as to the tiles, not as the servant of the corporation, but as an individual for his private gain, the act of piling the tiles not amounting to a nuisance, and no public trust being involved. And in an action against such corporation to recover for such injuries, parol evidence is admissible to prove that it neither owned nor controlled the tiles, although they had been shipped to it, and a bill of them had been rendered to it, and allowed by the president of its board of trustees. OCCUPANT OF REALTY IS NOT LIABLE FOR INJURIES RESULTING FROM NEGLIGENT USE OF PERSONAL PROPERTY ON IT, when such personal property is neither owned nor controlled by him, unless such use amounts to a nuisance.

CAUSE WILL NOT BE REMANDED TO REFEREE FOR REVISION OF HIS FIND

INGS as to a certain point, which, it is alleged, was not regarded as very important by counsel, nor given much prominence on the trial, when the record shows that the point was brought to the attention of the referee by both sides, and discussed by the court below.

CASE for negligence. There was judgment on the report of the referee for damages. The referee found that the defendant was a municipal corporation duly organized; that, at the time of the injury complained of, one Mason was its duly appointed street commissioner; that the corporation was the lessee of a corporation yard adjoining premises occupied by the plaintiffs; that employees of the corporation negligently piled a quantity of tiles against the fence between the corporation yard and the plaintiffs' lot, causing the fence to fall upon the female plaintiff, thereby inflicting upon her severe bodily injury, there being no contributory negligence on her part. The defendant offered evidence tending to prove that the tiles were, at the time of the injury, the property of Ripley Sons, and were in the custody and control of said Mason as an individual, and not in his official capacity. The referee admitted this evidence, subject to plaintiffs' objection, and found that, if said evidence was properly admitted, it showed that, at the time of the accident, the tiles were not the prop