Sale—Executory Contract—Express Warranty of Quality—Acceptance with Knowledge of Defect—Bight to Damages for Breach. .—In this state, under an executory contract of sale, a buyer of personal property upon an express warranty of quality, has a right to recover damages for a breach of such warranty, notwithstanding he has accepted the goods with knowledge at the time of the acceptance of the defect in quality.

Id.—Effect of Acceptance with Knowledge of Breach of Warranty. —The general rule applicable to all cases of sales of property is that the buyer has an election of remedies for a breach of a contract of warranty. If he knows of the defect at the time performance is offered he may refuse to accept the goods, insist on due performance and sue for damages for non-performance if further performance is not duly offered, and if he has paid for the goods in advance he can recover the amount of money paid thereon as part of the damages. If part performance has been made he may rescind the contract, restore what he has received and recover what he has paid. He need not rescind, ór reject the goods, however, but may stand upon the "contract, and, relying upon the warranty, may take the goods offered and sue for the damages caused by the breach.

Id.—Warranty of Quality of Boxes—Free from Dampness—Action for Breach—Immaterial Evidence of Dampness in Cans.—In an action to recover damages for breach of an express warranty that certain boxes sold to be packed with canned goods should be of dry stock and free from dampness, in which the theory of the defendant was that the rusting of the cans eobiplained of after they were packed in the boxes furnished by the defendant was not caused by the dampness of the boxes, but by drops of moisture left on the cans by the company manufacturing them, evidence was inadmissible that other cans manufactured by the can company showed moisture, in the absence of a showing or offer to show that such other cans were manufactured in the same manner or by the same process as those supplied for the plaintiff.

Id.—Measure of Damages—Warranty Both of Quality and Fitness. —Such a warranty was one both of quality and of fitness for the purpose intended, and for a breach thereof the buyer was entitled to recover, under section 3314 of the Civil Code, a fair compensation for the loss incurred by an effort in good faith to use it for such purpose.

Id.—Implied Warranty of Fitness May Exist with Express Warranty of Quality.—The making of an express warranty of quality in an executory contract of sale will not exclude an implied warranty of fitness, where the warranty so implied is not only not inconsistent "with the express warranty, but entirely in harmony therewith.