or consent." See also Smith v. Patton, 1 Serg. & R. 84; Baum v. Dubois, 43 Pa. St. 260; Irvin v. Bleakley, 67 Pa. St. 28; and also the very recent case of McGrew v. Foster, 113 Pa. St. 642.

We are of opinion that the learned judge of the court below was right in his instruction to the jury, and that the judgment was properly entered.

Judgment is affirmed.

SALES OF DECEDENT'S REALTY-CONFIRMATION. — The right of the heirs to the land is as absolute as that of the ancestor, until divested by a valid sale to pay debts made under an order of the orphans' court: McCoy v. Scott, 2 Rawle, 222; 19 Am. Dec. 640, and note; and such a sale is not valid, and regarded as consummated, until confirmed by the court: Rea v. McEachron, 13 Wend. 465; 28 Am. Dec. 471, and note. Confirmation by the court is essential to the consummation of a judicial sale of realty: Virginia etc. Ins. Co. v. Cottrell, 85 Va. 857; 17 Am. St. Rep. 108, and note. Compare State Nat. Bank v. Neel, 53 Ark. 110; 22 Am. St. Rep. 000, and note.

OGDEN V. BEatty.

[137 PENNSYLVANIA STATE, 197.]

SALE OF GOODS BY SAMPLE MEASURE OF DAMAGES FOR BREACH OF WARRANTY. - Where goods are sold by sample, with a warranty of quality, and are retained by the purchaser, the measure of damages for a breach of the warranty is the difference between the market value of the goods contracted for and of the goods delivered; and in an action for the price of the goods, the purchaser may interpose this difference as a defense pro tanto.

SALE OF GOODS BY SAMPLE SUFFICIENCY OF AFFIDAVIT OF DEFENSE IN

ACTION FOR PRICE. — An affidavit of defense, setting up a breach of warranty in a sale of goods by sample, in an action for their price, must contain a clear and concise statement of the facts which constitute a basis for the assessment of damages under the rule by which they are measured. All the elements of the defense must appear with reasonable certainty in the affidavit, and if any fact essential to complete such defense is omitted, the affidavit is insufficient.

SALE OF GOODS BY SAMPLE SUFFICIENCY OF AFFIDAVIT OF DEFENSE IN ACTION FOR PRICE. -An affidavit of defense, setting up a breach of warranty in a sale of goods by sample, in an action for their price, alleging great loss by reason of claims made by customers, and their cancellation of contracts because of the low grade and inferior quality of goods furnished, is insufficient, as failing to state the essential facts upon which to constitute a basis for the assessment of damages. Such affida. vit should at least state the quantity, market price, and difference in quality of the goods purchased, and of the goods delivered. SALE OF GOODS BY SAMPLE PRESUMPTION AGAINST PURCHASER. — In an action for the price of goods sold by sample, it will be presumed, in the absence of averment and proof to the contrary, that the goods were inspected by the purchaser when he received them, and that he knew their grade and quality, and made no complaint as to either.

ASSUMPSIT on book-account for goods sold and delivered. A request to enter judgment for plaintiffs, for want of a sufficient affidavit of defense, was refused by the court, and plaintiff's appealed.

George H. Earle, Jr., and Richard P. White, for the appellants.

Josiah R. Adams, for the appellee.

MCCOLLUM J. It is averred in the affidavit of defense that the notes and account in suit represent the price of yarn purchased by the defendant of the plaintiffs, by sample, which he exhibited to them; that the yarn delivered by the plaintiffs to the defendant was inferior in grade and quality to the sample shown, and that, in consequence thereof, he has sustained damage to the amount of many thousand dollars in excess of the sum demanded by the plaintiffs. It is to be noted that neither the quantity, market price, or quality of the yarn purchased, or of the yarn delivered, is stated in the affidavit. It contains, in general terms, a suggestion of a loss of custom and a cancellation of contracts as a result of a breach of warranty, but it is clearly deficient in the statement of specific facts on which to rest the legal conclusions invoked. It does not allege that the plaintiffs were manufacturers of yarn, that the defendant was a manufacturer of cloth, or that the former knew for what purpose the yarn was purchased by the latter. Its inferences and conclusions are not authorized by its facts. There is nothing in it on which to ground a claim for damages, embracing loss of custom or a cancellation of contracts.

Where goods are sold with a warranty of quality, and are retained by the purchaser, the measure of damages for a breach of the warranty is the difference between the market value of the goods contracted for and of the goods delivered. In an action for the price of the goods, the purchaser may interpose this difference as a defense pro tanto. If an affidavit of defense is required, it should contain a clear and concise statement of the facts which constitute a basis for an assessment of the damages under the legal rule by which they are measured. All the elements of a defense should appear with reasonable certainty in the affidavit, and if any fact essential to complete the defense is omitted, the affidavit is insufficient. In the present action, the defendant alleges that he has sustained great loss by reason of claims made

on him by his customers, and their cancellation of contracts with him, because of the low grade and inferior quality of the yarn; but he has not stated a single fact which would make these matters proper items of damage on a breach of the warranty. An affidavit so vague and evasive, and so radically wrong in its conclusions, upon the few facts it contains, cannot be approved. In the absence of an averment to the contrary, it is fair to presume that the yarn was inspected by the purchaser when he received it, and that he then knew its grade and quality, and made no complaint as to either.

The judgment is reversed; and it is ordered that the record be remitted to the court below, with direction to enter judgment against the defendant for such sum as to right and justice may belong, unless other legal or equitable cause be shown why such judgment should not be entered.

SALES BY SAMPLE. AS TO THE EFFECT OF A SALE BY SAMPLE when the vendee has an opportunity to inspect the goods for himself, see note to Bradford v. Manly, 7 Am. Dec. 129. Compare Gould v. Stein, 149 Mass. 570; 14 Am. St. Rep. 455, and note, as to sales by sample generally. The vendee may rescind his purchase, upon discovering a latent defect in the goods bought by sample: Hudson v. Roos, 72 Mich. 363. In sales of goods by sample, there is always an implied warranty that the goods are of the kind and quality of the sample: Brigham v. Retelsdorf, 73 Iowa, 712.

SALES BREACH OF WARRANTY DAMAGES.

The right to recover damages for the breach of an express warranty in the sales of chattels survives the acceptance of them by the vendee: Underwood v. Wolf, 131 Ill. 425; 19 Am. St. Rep. 40, and note; Fogg v. Rodgers, 84 Ky. 558. The measure of damages in an action for a breach of warranty of soundness is the difference between the value of the thing sold at the time of the sale, if it were sound, and the actual value thereof with the defects: Note to Cary v. Gru man, 40 Am. Dec. 303.

DATZ V. PHILLIPS.

[137 PENNSYLVANIA STATE, 203.]

SPECIFIC PERFORMANCE, PARTY SEEKING, MUST DO EQUITY.-Specific per formance is not of right, but of grace, and one seeking such relief in equity must show himself ready and willing to do all that he ought in good conscience to do, and if he does not, his bill will be dismissed. SPECIFIC PERFORMANCE, WHEN WILL NOT BE GRANTED. - Where a contract

is not fair or the conduct of the party seeking its specific performance is not just and conscionable, or there are independent circumstances which will render the operation of a decree of specific performance harsh and inequitable, the parties will be left to their remedy at law. SPECIFIC PERFORMANCE, WHEN WILL NOT BE GRANTED. Specific perform

ance of an agreement to close windows in a party-wall, upon receiving

one year's notice and one half the cost of erecting the wall, will not be granted in favor of a party who has violated his part of the agreement to furnish the building of defendant with certain sewer connections, in consideration of a surrender of an easement in plaintiff's land.

M. Hampton Todd, for the appellant.

James Aylward Develin and Theodore D. Rand, for the appellees.

WILLIAMS, J. The parties to this litigation own contiguous lots near the corner of Fourth and Arch streets, in the city of Philadelphia. The plaintiffs in the court below own Nos. 70 and 72 North Fourth Street. The defendant's lot was No. 410 Arch Street, which, extending beyond the corner lot owned by other parties, adjoined and formed the rear boundary of both the lots of the plaintiffs. On the back side of No. 70 there was a large privy well, some thirty feet deep and ten wide, to the use of which the defendant had a title which is not questioned, and to which he had access for himself and his tenants by means of an opening in the east wall of his building. Both parties were desirous to rebuild on their respective lots. Negotiations were had in regard to the privy well and the drainage for the new buildings, which resulted in an amicable arrangement by which Phillips was to surrender his right to the privy well, and permit the plaintiffs to fill it up and build over the ground. In exchange for the right thus relinquished, the plaintiffs were to provide Phillips with a suitable connection with the Fourth Street sewer under the south side of their building. He was to build, therefore, a solid wall on his east line, with no opening in it, which the plaintiffs could use as a party-wall in the erection of their block. This he did. The plan of the plaintiffs' building contemplated the use of this party-wall for their first floor, and a shortening of the stories. above the first, so as to leave a recess or open area between the party-wall and the upper stories some ten or twelve feet wide. Into this area it was agreed that Phillips might open windows in the party-wall. So long as they were kept open, he was not to ask contribution towards the cost of the wall. If the plaintiffs wished the windows closed, they were, to give Phillips one year's notice, and pay their share of the cost of the wall. This agreement was reduced to writing, at the instance of Phillips, and presented to the plaintiffs for execution. They made no objection to the contract as written, but delayed its execution until Phillips had completed his building

AM. ST. REP., VOL. XXI. -55

and then refused to sign it. They filled the well, and built over it up to and against the party-wall, but they refused or neglected to provide the sewer connection that was to take its place, and compelled Phillips to provide another connection with the sewer by a different route, and at a relatively large cost. The master has found that the written contract correctly recited the agreement actually made; that Phillips surrendered his right to the well, and complied with the contract on his part in regard to the manner of building the party-wall. He has also found the refusal of the plaintiffs to provide the promised sewer connection, and that Phillips has suffered injury in consequence, amounting to several hundreds of dollars. Upon this state of facts, the plaintiffs have come into a court of equity to ask that Phillips be compelled to close the windows opening into the area, in accordance with his agreement to close them upon a year's notice.

The learned judge who sat as a chancellor in this case made the decree asked for, treating the several stipulations that made up the general arrangement between these parties as severable and independent in their character. Such of them as were for the benefit of Phillips, and were to be performed by the plaintiffs, he left for a court of law to enforce in an action for damages; but a stipulation which was found by the master to be part of the general arrangement, which was for the benefit of the plaintiffs, he enforced by a decree in equity. This, we think, was wrong. If the case presented was one for specific execution, the equities of both parties should have been protected. But we think the plaintiffs were in no position to ask equitable relief. They set out in their bill so much of the general arrangement as related to the windows in the party-wall. The defendant replied, in substance, that the stipulation on which the bill rested was but a part of an agreement made before the work of rebuilding was begun; that under that agreement, he had surrendered his right to a privy well on the plaintiff's ground, and erected a party-wall with no opening in it on the first floor, against which the plaintiffs had built their new building; that, on the other hand, the plaintiffs had neglected and refused to keep the agreement on their part, and had neither provided him with a sewer connection, as promised, nor offered to make any substitute or compensation therefor. The report of the master showed the facts to be as alleged in the answer, and plaintiffs were thus found to be standing with both feet on their