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. Gruman, 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 buiid 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

own broken promises, asking a chancellor to compel Phillips to keep to the uttermost his promises towards them. But specific execution is not of right, but of grace; and he who seeks relief at the hands of a chancellor must show himself ready and willing to do all that he ought in good conscience to do: Brightly's Equity, sec. 218. If he does not, his bill will be dismissed. If the contract is not fair, or the conduct of him who asks its enforcement is not just and conscionable, or if there are independent circumstances which will render the operation of a decree of specific execution harsh and inequitable, the parties will be left to their remedies at law: Brightly's Equity, sec. 220. Whether the stipulations in the contract are severable or not is not the important question in this case, but whether the position and conduct of the plaintiffs are such as to give them any standing in a court of equity. They had secured the surrender by Phillips of his rights on their land, and the erection of a wall with no openings on the first floor as a party-wall. for which they had failed to make the promised return, and were still refusing to make any return whatever. Under such circumstances, they cannot be heard to ask equitable relief in regard to any part of the general arrangement. Having violated it themselves in every important particular, they cannot ask its specific execution at the hands of a chancellor. They must do equity before they ask equity. The decree appealed from is now reversed and set aside, and the plaintiff's bill is dismissed, the costs in the court below and in this court to be paid by the appellees.

SPECIFIC PERFORMANCE. As to what is necessary to give a court of equity jurisdiction to enforce the specific performance of contracts, see note to Anderson v. Green, 23 Am. Dec. 423-431. See also William Rogers Mfg. Co. v. Rogers, 58 Conn. 356; 18 Am. St. Rep. 278, and note; Minneapolis etc. R'y Co. v. Cox, 76 Iowa, 306; 14 Am. St. Rep. 216, and note; Eckstein v. Downing, 64 N. H. 248; 10 Am. St. Rep. 404, and note. The party seeking specific performance must be free from all blame himself: Kelly v. Central P. R. R. Co., 74 Cal. 557; 5 Am. St. Rep. 470. For he who seeks equity must do quity: Yard v. Pac. Mut. Ins. Co., 10 N. J. Eq. 480; 64 Am. Dec. 467. Courts of equity will not enforce the specific performance of contracts which are fraudulent, illegal, hard, or unconscionable: Swint v. Carr, 76 Ga. 322; 2 Am. St. Rep. 44; Veth v. Gie, th, 92 Mo. 97; Ramsay v. Gheen, 99 N.C. 215; Buckley v. Patters m, 39 Minn. 230; Eaton v. Eaton, 64 N. H. 493; Duncan v. Central P. R. R. Co., 85 Ky. 525; Mansfeld v. Sherman, 81 Me. 365; Byars v. Stubbs, 85 Ala. 256.

(

STEPHENS V. Gifford.

[137 PENNSYLVANIA STATE, 219.]

SALE OF CHATTEL, WHAT CONSTITUTES. A sale of a chattel is the transfer of the property in it for a consideration, and is ordinarily effected by the delivery of the thing sold to the buyer, and the delivery of the price or a security therefor to the seller.

SALE OF CHATTEL INJURIOUS TO THIRD PARTY VOID. - Parties to a sale of a chattel may make such terms and conditions as are convenient to them, but when such terms and conditions are prejudicial to others, or are calculated to mislead the public, they are void as to those who would otherwise be injuriously affected by them.

SALE OF CHATTEL RETENTION OF TITLE BY SELLER - INVALIDITY AS TO INNOCENT THIRD PARTIES. - The title to a chattel sold may remain in the seller as security for the purchase price by agreement of the parties, and so long as the rights of innocent third parties are not affected, it may be enforced according to its terms; still, as to innocent purchasers from and creditors of the buyer, such agreement gives him a deceptive appearance of ownership and a false credit, and will be disregarded. SALE OF CHATTEL When POSSESSION AS PRESUMPTION OF OWNERSHIP. one has possession of personal property, those who deal with him on the credit thereof must inquire into the origin and nature of his possession as to whether or not he is a purchaser or a bailee, and when it is learned that he is a purchaser, his continued possession raises a presumption of continued ownership which is conclusive in favor of bona fide purchasers and creditors.

SALE OF CHATTEL

RETENTION OF TITLE-RIGHT OF INNOCENT PURCHASER. Where the owner of goods sells them to one party and retains the possession, afterwards selling them to another innocent purchaser, who takes possession, the first purchaser loses his title, no matter if he acted in good faith, pil a fair price, and left the goods with the seller because of his confidence in and desire to aid him. SALE OF CHATTELS — RETENTION OF POSSESSION AS EVIDENCE OF FRAUD. — Retention of possession by the seller, upon a sale of chattels, is not merely evidence of fraud, but in itself makes the transaction fraudulent as to subsequent bona fide cre litors and purchasers from him. SALE OF CHATTELS - CHANGE OF POSSESSION, HOW Determined.

In deciding the sufficiency of possession taken by the purchaser of a chattel, to protect him against subsequent purchasers or creditors in good faith, the character of the property, the use to be made of it, the nature and object of the transaction, the position of the parties, and the usages of trade or business must all be considered. SALE OF CHATTELS SUFFICIENCY OF CHANGE OF POSSESSION. - The purchaser of goods must, for the protection of himself and the public, take such possession as is usual and reasonable, in view of all the circumstances of his purchase, where the property is capable of delivery; and as between himself and subsequent purchasers in good faith and creditors, he must bear the loss of his neglect in this respect.

SALE OF CHATTELS-SUFFICIENCY OF CHANGE OF POSSESSION. A sale of horses and a wagon and harness under an arrangement by the purchaser with the seller that the former should have the use of the stable where