Opinion by

In November, 1884, J. R. Houston, the appellee, sold and delivered to J. W. Cook, the appellant, at the mill of the latter in the city of Allegheny, a raft of oak timber for thirteen cents per cubic foot. The timber was examined and measured in the presence of the parties by W. S. Oakley, the city measurer, and it amounted at the price named to the sum of $622.18. The appellant paid, on the 15th of November, 1884, one hundred and fifty dollars in cash, gave his duebill for $50, payable in December following, and his note for $347.18 at four months, to apply on this sum; and the balance, being $75, he retained as he alleges “ to cover any deficiency that might thereafter appear in the timber.” This suit was brought on the 25th of March, 1885, and in it the appellee claimed and recovered in the court below a verdict and judgment for the balance so retained and the amount of the note above mentioned. The defence to the action was that the appellee expressly warranted and falsely and fraudulently represented the timber as sound, when, in fact, it was rotten and nearly worthless as he well knew. This defence was supported by the testimony of the appellant, in which he was corroborated to some extent by Duff and Wallace, the former his bookkeeper, and *46the latter the foreman of his mill. The appellee denied that he warranted the quality of the timber or made any false representations respecting it, and he alleged that the timber was sound when rafted and delivered. This denial and allegation he supported by his own testimony in which he was corroborated to some extent by the evidence of Oakley, the city measurer, and of Samuel Thomas and John Deidrich, who assisted in getting out the timber and rafting it. It is evident that the jury accepted the appellee’s version of the transaction as 1áie true one, and did not credit the testimony offered by the appellant to sustain his claim.

As the appellant gave no intimation that he was dissatisfied with the timber until nearly three months after he claims he discovered it was not in quality as it was represented and warranted to be, and in the meantime he sawed and disposed of a part of it, he did not fairly present, in his own testimony, a ease for rescission. It was, rather, a case for recoupment of damages sustained by a breach of warranty or by false and fraudulent representations.

In reviewing the instructions to the jury we must not lose sight of the obvious fact that the appellant rested his defence in the court below upon two propositions which he endeavored to sustain by evidence, first, that there was an express warranty of the quality of the timber, and, second, that there was a fraudulent representation as to its quality, which his vendor knew to be false. This fact appears in the unchallenged statement of the learned judge in his general charge and in the appellant’s testimony. It is also shown in the appellee’s answer to the defence set up to defeat his claim. The charge, considered as a whole, was appropriate to the issues of fact made by the parties. It is true that the unqualified affirmance of the appellee’s fourth point may admit of a construction which discloses technical error, and the same may be said of the answer to the third point. It is probable, however, that these points were drawn with reference to the question of rescission and were intended to state the principle that prompt notice of non-acceptance of the chattel, or thing bargained for, is essential to a defence on this ground. But whether so or not, we regard the answers to them as, at most, harmless error, in view of the clear and repeated instruction in the general charge that *47the damages arising from fraud or a breach of warranty were a defence pro tanto. The principles applicable to a case of warranty and fraud in the sale of chattels were plainly and correctly stated by the learned judge, and these govern the issues made and tried by the parties in this case.

The specifications of error are overruled.

Judgment affirmed.