after making the foregoing statement, delivered the following opinion of the court:

The questions presented for our decision by the assignments of error will be disposed of in their order as stated below.

*397[1, 2.] 1. The trial court, by its action in refusing to admit the testimony tendered by the vendee, in giving instruction No. 1, and in the refusal of instructions A and B, as set forth in the statement preceding this opinion, applied the maxim of caveat emptor to the case, both with respect to the quality and the quantity of the subject of the sale.

The chief question presented for our decision is whether such application of the common law maxim mentioned was erroneous ?

We are of opinion that such application of the law was erroneous.

2. It was certainly erroneous with respect to the quantity of the subject of the sale—the aggregate weight of the cattle. This is not a case where the contract of sale stipulated for a specific quantity of the subject of the sale. The sale of the cattle was at the price of so much per pound on board the cars at the points from which the cattle were shipped, and the amount of purchase price which the vendor was entitled to demand was necessarily dependent upon the ascertainment of the actual weight of the cattle at such point; unless, of course, the vendee by his conduct waived his right to question the accuracy of the aggregate weight charged against him. On this point we deem it sufficient to say that there is nothing in the evidence in the record tending to show any "such waiver.

[3, 4] 3. The consideration of whether the maxim of caveat emptor is applicable to the quality of the subject of the sale in the case in judgment involves distinctions of some nicety, but which in reason and in accordance with the great weight of authority present no real difficulty as applicable to the case made by the record before us. Whether such maxim is applicable here depends primarily upon whether, under the contract of sale in evidence, there was an implied, Warranty of- the quality of the cattle sold; and, if so, then, secondarily, upon whether the vendee by his *398conduct at the time of the delivery of the cattle and subsequently, waived his rights under the implied warranty as to quality?

4. It is true that the maxim caveat empior applies, so far as quality is concerned, as well to executory contracts of sale of chattels by description, as to present sales of specific chattels, where, in the absence of fraud, there had been an acceptance of the subject of the sale. 2 Mechem on Sales (1891), sec. 1391. But such maxim does not apply where there is “an express warranty,” or where there is a warranty “implied from the nature and circumstances of the sale.” 2 Benjamin on Sales (6th Am. Ed.), section 965, p. 842. To the same effect see Wilson v. Shackleford, 4 Rand. (25 Va.) 5, and Mason v. Chappell, 15 Gratt. (56 Va.) 572, in both of which cases, however, the contract of sale was silent as to quality.

It is true that under the English rule on the subject, where there is a sale by a vendor of chattels, of an article by a particular description, without more—as said in 2 Benjamin on Sales (6th Am. Ed.), section 918, pp. 789-9: <<* * * jj- js a condition precedent to his right of action, that the thing which he offers to deliver, or has delivered, should answer the description. Lord Abinger protested against the confusion which arises from the prevalent habit of treating such cases as warranty, saying: ‘A great deal of confusion has arisen in many of the cases upon this subject, from the unfortunate use made of the word warranty. Two things have been confounded together. A warranty is an express or an implied statement of something which a party undertakes shall be a part of a contract, and though part of the contract, collateral to the express object of it. But in many of the cases, the circumstance of a party selling a particular thing by its proper description has been called a warranty, and the breach of such a contract a breach of warranty; but it would be better to distinguish *399such cases as a noncompliance with a contract which a party has engaged to fulfil; as if a man offers to buy peas of another and he sends him beans, he does not perform his contract ; but that is not a warranty; there is no warranty that he should sell him peas, the contract is to sell peas, and if he sell him anything else in their stead, it is a nonperformance of it/ ” (Citing English cases.) “There can be no doubt of the correctness of the distinction here pointed out. If the sale is of a described article, the tender of an article answering the description is a condition precedent to the purchaser’s liability, and if this condition be not performed, the purchaser is entitled to reject the article, or if he has paid for it, to recover the price as money had and received for his use; * * *”

In such case, according to such rule, as stated in 2 Me-chem on Sales, section 1392. “When the seller offers goods n performance of the contract * * * it becomes * * * not only the right, but the duty of the buyer to examine the goods so offered, and, if they do not satisfy the contract, to reject them within a reasonable time. Failing to reject them he declares his satisfaction with the seller’s performance so far as inspection can disclose, and he can, in the absence of fraud, neither subsequently reject the goods nor rely upon any implied warranty in respect to any defects which were open to such observation.”

[5] And reference to this English rule is made with approval in this State by the opinions of this court in Mason v. Chappell, supra, (15 Gratt. [56 Va.] 583), and in International Har. Co. v. Smith, 105 Va. 683, at p. 688, 54 S. E. 859. But these cases did not involve the question of whether the right to rescind the contract in toto was the sole remedy of the vendee in such case. And such is not the prevailing American doctrine on the subject] The American note to the section of Benjamin on Sales last quoted (sec. 2, Idem, p. 799, note 32), says: “A sale by *400description is upon condition that the thing sold answers the description. * * * The American cases almost unanimously treát conditions of this class as warranties.” And again, in the American note 24 to section 966 of the learned work last mentioned, p. 844: “The American decisions treat a sale by description as analogous to a sale by sample, and hold that words of description imply a warranty that the property shall answer the description. The effect is to extend to breaches of condition of this class the remedies available in cases of breach of warranty, while at the same time the English remedy of rejection of the property is not denied.” Citing Mass., N. Y., N. J., Wis., Mo., N. C., Pa., Tex., Cal., Me., and Canadian cases.

[6] However, it is unnecessary for us, in the case before us, to consider whether we should follow the English or the prevailing American rule on the subject under consideration, because in the contract in the case in judgment there was something more than a mere sale by description. And even under the English rule, as laid down in 2 Benjamin on Sales, section 966, p. 843: “where a chattel is made or supplied to the order of the purchaser, there is an implied warranty that it is reasonably fit for the * * * special purpose intended by the buyer, if that purpose be communicated to the vendor when the order is given * * *”

[7] Now according to the correspondence introduced in evidence by the vendor in the case in judgment, the order was given as a part of the correspondence in which the special purpose for which the cattle were intended by the buyer was communicated to the vendor, and that purpose, as stated in the letter of the vendee to the vendor of date September 27, 1916, was to supply the vendee’s trade, and the communication expressly stated that for the cattle to be fit for such special purpose, they must be “good cattle, weighing 900 to 1000, if they are good. My trade does not want them unless they are good.” In reply to this letter *401the vendor on October 11th next, wrote to the vendee, “Can sell you five loads thousand pounds feeder cattle good quality * * * Wire answer * * * immediately.” On October 12th, the vendee wired the vendor, “Think I can sell the five loads of cattle, if the freight is not too high.” On the same day the vendor wired back to the vendee the freight rate and added—“Cattle are good quality and will average one thousand fifty? Wire shipping instructions and where to draw on you if you want the cattle.” On the next day the vendee wired the vendor, “Ship cattle to Haymarket * * * No jerseys or tail-end cattle accepted * * *.” The next day, October 14th, the vendor wrote the vendee that he was shipping that night 149 head of cattle “according to your instructions by wire * * *. These are good cattle and I got good weights on them.” On October 15th the vendor wrote again to vendee saying that the cattle moved at three-o’clock the previous night, stating the freight rate, and expressing the hope that they would “come through all right, and your customers are pleased with them.”

So that we see that “from the nature and circumstances, of the sale,” consisting in the subject of the sale being “supplied to the order of the purchaser * * * for * * * a special purpose intended by the buyer * * * communicated to the vendor when the order (was) given,” there-was under the contract of sale in question in the case in judgment “an implied warranty” that the cattle were “reasonably fit for * * * the special purpose” aforesaid—i. e.,. to supply the demands of vendee’s “trade,” which required that none of them should be excessively large—unreasonably above 1050 lbs.—or should be jerseys, or “tail-enders,” i. e., unreasonably below the weight of 900 lbs., the weights last mentioned in the correspondence.

[8-10] The case in judgment, therefore, is one involving an implied warranty of the quality of the subject of the-sale.

*4025. In such case, as laid down in 2 Mechem on Sales, sec. 1393, as the holding of the weight of authority: “ * * * the buyer is”' (not) “under * * * obligation to examine the goods and determine conclusively upon their correspondence with the contract. Acceptance unexplained may indeed be strong evidence of satisfaction, but it is not conclusive and may be rebutted by the circumstances. . The seller’s undertaking continues and follows the transfer of the title to the buyer. The latter may, therefore,- accept the goods, even though inspection would disclose or he already knows that they do not correspond with the agreement, losing thereby his right to subsequently reject them, but not necessarily destroying his right to rely upon the implied warranty—the question whether, under all the circumstances, he intended to waive his rights being a matter, for the jury.” Citing numerous authorities.

It should be here noted that aside from the distinction that an express warranty may be relied on in a case of a sale of chattels in praesenti, whereas an implied warranty may not be relied on .in such case (as is explained in 2 Mechem on Sales, sec. 1394, 1395) ; in executory sales, of chattels, in the absence of a,n express stipulation in a contract of sale as to the effect of acceptance, there is, according to the weight of authority, and in. reason, really no.difference between the effect of the .acceptance on the, right of the vendee to rely on an express warranty, from his right to rely on an implied warranty of quality. Wherever there is such warranty (whether express or implied is immaterial), the question of whether the vendee by acceptance of the subject of the sale intended- to waive his rights under the warranty is a question of fact. Jacot v. Grossman Seed Co., 115 Va. 90,105-7, 78 S. E. 646; Eastern Ice Co. v. King, 86 Va. 102, 9 S. E. 506.

In. the case, then of a warranty of quality, attendant .upon an executory sale of chattels, such as is involved in the case *403in judgment, the vendee may actually receive the possession of the subject of the sale and retain such possession and appropriate the goods to his own use, “without assenting that they are the ones contemplated by the contract.” 2 Mechem on Sales, sec. 1370. The mere receiving does not, as a matter of law, imply the “acceptance” of the goods, in the sense that the buyer has assented to the appropriation of the specific goods to the contract—which is one of the four essential elements of importance necessary to complete the contract of sale. Idem, secs. 1364, 1369, 1370. But, in such case, the conduct of the vendee, when or after the goods are delivered, upon his inspection of them, where the defect in the goods is obvious, or would be disclosed by reasonable inspection, with respect to giving notice to the vendor that the goods are unsatisfactory, may be of importance as bearing on the mental attitude of the vendee in the premises—i. e., upon the question of whether he has by his conduct at such time evidenced a waiver of his right to thereafter insist on the warranty; and also upon the question of estoppel, which often arises in such cases—i. e., whether the vendee by his conduct in failing to notify has misled the vendor to the prejudice of the latter.

[11] In the case in judgment, however, we have the uncontroverted fact that immediately on the coming of the cattle into the possession of the vendee and his inspection of them, the vendee wired the vendor, “Cattle not good as represented. You had better come and help sell them.” This circumstance, about the existence of which, there is no controversy, accompanied and explained the retention of the possession, and distinguishes the case in judgment and renders it one in which the conduct is such that the jury could, not have inferred therefrom that the conduct of the vendee in retaining and selling the cattle was such that he waived his rights under the implied warranty aforesaid. Hence, no instruction to the jury on that subject was or would be proper in the case before us.

*4046. To sustain the position that as a, matter of la,w the retention of the cattle by the vendee and his appropriation of them to his own use was a waiver of his right to object to the quality of the cattle, the following authorities are cited and relied on for the vendor, namely: Clark on Contracts, p. 676, 35 Cyc. 608; Syer & Co. v. Lester, 116 Va. 541, 82 S. E. 123; Linger v. Wilson, 73 W. Va. 669, 80 S. E. 1108; Allison v. Vaughan, 40 Iowa 421-4; Hirshhorn v. Stewart, 49 Iowa 418; Berthold v. Seevers Mfg. Co., 89 Iowa 506, 56 N. W. 669; Minneapolis Selling Co. v. R. N. Cowin Co., 153 Iowa 129, 133 N. W. 338, 339, 40 L. R. A. (N. S.) 513. But all of these authorities, except the two cases last cited, involve the eifort on the part of the vendee to rescind the contract in toto, and hence are not in point. In the two cases last cited, the decisions were expressly placed upon the ground of the retention of the goods by the vendee an unreasonable time, after knowledge of the defects and payment of a part of the purchase price, before giving any notice or making any complaint of the defects.

We are, therefore, of opinion that the trial court should have admitted the testimony which it refused to admit; should have refused to give instruction No. 1, which it gave; and should have given instructions A and B, which it refused to give, inserting “and Evansville, Tenn.” after the words “Spring City, Tenn.” in instruction A. And it affirmatively appears from the record that this erroneous action was prejudicial to the vendee, hence it is reversible error.

[12, 13] 7. The sole remaining question for our consideration is this: “Was instruction No. 1 erroneous in its peremptory direction to the jury as to the time from which they should find by their verdict that interest should begin on the amount of the verdict?

This question is ruled by Washington, etc., Co. v. Westinghouse, 120 Va. 620, 89 S. E. 131, 91 S. E. 646, and the *405instruction was erroneous in this particular. It is true that if there had been no other error in the case we might have removed that error by abating the interest, as was done in the case just cited, or by some action substantially to the same effect; but, for the reasons above stated, the case must be reversed, and as the facts are not sufficiently before us to dispose of the case under the statute in such case made and provided (Code 1919, section 6365), the case will be remanded to the court below for a trial de mov'o, to be had if the plaintiff is so advised, but not in conflict with the views expressed in this opinion.

Reversed and remanded.