1. A partial payment upon the price of goods purchased, with knowledge of a defective condition amounting to a breach of an express warranty, does not amount to a waiver of the breach of warranty, and will not prevent the buyer from pleading a partial failure of consideration. Civil Code (1910), § 4137.

2. On the trial of a suit by a purchaser against the seller, instituted after a return of the property by the purchaser and its acceptance by the seller, in which the purchaser sought to recover the purchase-money paid, upon the ground of a breach of an express warranty in the contract, where the evidence authorized the inference that there was such a breach, and where it appeared from the evidence that, after knowledge of the defect alleged to constitute the breach of warranty, the purchaser made a partial payment on the purchase-price, the court properly refused the defendant’s request to charge that if the plaintiff made a partial payment on the unpaid purchase-money after having discovered the alleged defect in the property, he would be precluded from pleading a partial or total failure of consideration. There being an express warranty and a breach thereof, the plaintiff was entitled to-recover; and the court did not err in charging the jury as to the right to recover in such a case.

3. The evidence presented no issue respecting any right in the purchaser to rescind the contract, and it was therefore not error for the court to *686refuse the defendant’s request to charge the law with reference to the duty resting upon a purchaser when undertaking to rescind a contract of sale.

4. The evidence authorized the verdict found for the plaintiff.

Judgment affirmed.