hauled away during two succeeding days. For the purposes of this case we will assume, without deciding, that there was no completed sale until the wheat was delivered, and we will also assume that the son had all the authority to reject the wheat that the plaintiff would have had if present; still we think there was no error in overruling appellant’s motion. It is true that there can be no effective warranty—no warranty that will serve as the basis of an action—without a completed sale. If the purchaser reject the property because not of the specified quality, he may have an action on the contract for failure to deliver, but he can have no action upon the warranty. There can be no breach of the warranty if the title never vests in the purchaser.
The case of Osborn v..Gantz, 60 N. Y. 540, cited by appellant, was a case where the purchaser refused to accept the goods. In executory contracts for the sale of personal property, the acceptance of the property by the vendee, with full opportunities for inspection, and where he is not induced to refrain from inspection through any fraud or artifice of the vendor, is generally regarded as an admission that the property corresponds with the terms of the contract of sale. Reed v. Randall, 29 N. Y. 358; Dutches Co. v. Harding, 49 N. Y. 321. But this Tule does not cover latent defects, or defects not readily discernible on inspection. It is entirely competent, however, for the vendor, in an executory contract of sale, to make an absolute warranty of the quality of the goods. It is purely a question of intent. If he intend to extend the warranty beyond the delivery, and make himself responsible for any damages that May result in case the goods are not as represented, and if the other party so understand it, he is bound. In this respect the law is the same whether the contract of sale be executory or in præsenti. Patent defects are not within the warranty in either case. And in either case, where defects are discovered after delivery, the vendee is not bound to return or offer to return the goods, but may retain and use the same, and bring his action upon the warranty. In Day v. Pool, 52 N. Y, 416, Peckham, J., delivering the opinion of the court, says: “In addition to the mere contract of sale in an executory as well as on a sale in
