præsenti, a vendor may warrant that an article shall have certain qualities. This agreement to warrant in an executory contract of sale is just as obligatory as a warranty on a present sale and delivery of goods.” And again: “I see no reason why the same rights and remedies should not attach to a warranty in an executory as in a present sale, and no greater. The purchaser in an executory sale could not rely upon a warranty as to open, plainly apparent defects, any more than he could in a sale ix preesenti.” And again: “In my opinion, where there is an express warranty, the purchaser, whether in an executed or an executory sale; is not bound to return the property upon discovering the breach, even if he have a right to do so.” In Maxwell v. Lee, (Minn.) 27 N. W. Rep. 196, it is said: “It is undoubtedly the settled law in this state, and generally elsewhere, that on an executory contract of sale, as in a sale in prcesenti, of personal property, the vendor may warrant the quality; and that the vendee, upon the receipt of it, and upon subsequent discovery of the breach of warranty, is not bound to return, (even if he had the privilege of doing so,) but may retain and use the property, and have his remedy upon the warranty.” See, also, Scott v. Raymond, 31 Minn. 437,18 N. W. Rep. 274; Mandel v. Buttles, 21 Minn. 391; Polhenus v. Heiman, 45 Cal. 579; Gurney v. Railroad Co., 58 N. Y. 358; Hull v. Belknap, 37 Mich. 179; Axe Co. v. Gardner, 10 Cush. 88; Brigg v. Hilton, 99 N. Y. 517, 3 N. E. Rep. 51; Doane v. Dunham, 65 Til. 516; Dailey v. Green, 15 Pa. St. 125; Brantly v. Thomas, 22 Tex. 270. As appellant’s motions were based upon the theory that there could be no warranty in an executory contract of sale of personal property, they were properly overruled.
The fourth assignment of error is closely allied to the foregoing. Appellant asked an instruction, which was refused, covering the thought that if plaintiff accepted the wheat, and retained and used it without objection, the presumption was conclusive that the property conformed to the contract, and that such acceptance barred all claims for compensation on account of any defect shown by subsequent inspection. The authorities already cited show that such is not the law. The defect claimed in this case was that the wheat had been heated
