52 FEDERAL REPORTER. .
bond, but, on his coming to Memphis, he did not notify the con-
signors, nor rely on them to save their shipments. The case is one for
general average; and the fact that the Mitchell did not complete her
trip, but returned, when raised, to the nearest port of safety for re-
pairs, should not defeat the contribution under the facts of this case.
The custom to include certain expenses in the general average is,
perhaps, not admissible as evidence; but in this case there was, iu
effect, one continuous effort to save the sunken vessel and her cargo,
and the average should include all the expenses from the sinking of
the vessel, not excluding those incurred for a reshipment of a part of
the damaged cargo from Memphis to New Orleans on the Cherokee.
Decree accordingly. _
LINDLEY v. HUNT}
(Uircuit Court, E'. D. Missouri. November 1, 1884.)
SA1.Es—-IM1·mm1> WARRANTY.
ln sales of personal property, in the absence of express warranty, where the
buyer has an opportunity to inspect the commodity, and the seller is guilty of
no fraud, and is not the manufacturer of the article he sells, the maxim of
caveat emptor applies.
At Law.
McKcighan :6 Jones, for plaintiff. J
Blodgett et Dickson, for defendant. r
Tssu, J. j Suit on a promissory note. The defense is a failure of
consideration pro tanto. That defense arises in this way: The note
was given for the purchase of a second-hand locomotive, and it is con-
tended there was a warranty of said locomotive, or a representation
as to its efficiency, on which the defendant relied. It sovhappened .
that after the locomotive was delivered and intermediate repairs, that
said locomotive did not, without further repairs at the cost of defend-
ant, operate successfully. The railroad retained said locomotive. The
defendant in this case is the joint maker of the note, and as such
liable therefor, unless the defense interposed is established.
The evidence discloses that a full test was made by the railroad and
defendant with respect to said locomotive, and that the same was
purchased on the judgment of the defendant with respect thereto, and
not upon any representations made by the plaintiff; also that there
e was no warranty. Hence the defense fails. Judgment for the plain-
tiff for $5,512.50.
See Reynold v. Palmer, 21 Fan. Rmx 433, and note, 439.-—[Ep.
r l Reported by Benj. F. Rex, Esq., of the St. Louis bar.