the assignor be a resident householder of this state, the appraisers shall set off to him such articles of property mentioned in the inventory as he may select, not exceeding in value three hundred dollars. The amount of exemption provided by this statute was enlarged by implication to six hundred dollars by the act of March 29, 1879: O'Neil v. Beck, 69 Ind. 239.

In the case of Graves v. Hinkle, 120 Ind. 157, it was held that an assignor could avail himself of the right of exemption only by a substantial compliance with the requirements of section 2760 of the Revised Statutes of 1881, and that he must select the articles of property claimed by him as exempt from sale at the time and in the manner provided in that section; and, if he failed to do so, the right of exemption would be deemed to have been waived, and the property would all constitute a trust fund for the exclusive benefit of the creditors until they were all satisfied. The court said: "As against his deed, which transfers the title to the property, the assignor can only claim the right of exemption by pursuing the method 585 prescribed by the statute. He has a right to claim the amount out of real estate or personal property, or both, but, unless prevented from doing so without his own fault or neglect, he must assert his right in the manner and at the time prescribed by the statute."

In the case before us, the petition states that the assignor was a householder of this state, and that a few days before the appraisement he demanded of the assignee that property of the value of six hundred dollars be set off to him as exempt from sale, and that he then and there designated and selected the particular property so claimed by him, and the assignee promised to have the property so set apart at the time of the appraisement. The assignor was confined to his house by sickness when the property was appraised, and could not be present to again assert his right to exemption and again select the articles of property claimed by him, but relied upon the agreement of the assignee to protect his rights in the matter.

The law contemplates that the appraisement shall be made under the supervision of the assignee. Following the decisions of the supreme court requiring a liberal construction of the exemption laws in favor of the debtor, we are of the opinion that the petition shows a substantial compliance with the statute. At least enough is stated to rebut the presumption of a waiver resulting from the assignor's failure to be present and assert his right at the time of the appraisement.

Where the assignor substantially pursues the method prescribed by the statute in asserting his right to exemption, and the assignee

refuses to set off property to him, but converts it into the trust fund, the assignor is equitably entitled to the proceeds of the property which should have been set apart to him, and it is the duty of the court, on proper application, to order the assignee to turn such proceeds over to the assignor.

The petition in this case was sufficient, and the relief prayed 536 for ought to have been granted, unless the answer contained facts sufficient to defeat the right to exemption.

It is insisted that because the assignor transferred a large amount of money to one Street, for his own use, and to withdraw it from the operation of the assignment, he should not be allowed the right to the exemption expressly conferred upon him by the statute. It appears by the answer that the assignor had given the assignee an order on Street for the money so transferred to him, but Street refused to pay it over, and the assignee had a suit then pending for its recovery.

By the recording of the deed of assignment, the legal title to all of the property owned by the assignor at that time became vested in the assignee for the benefit of the creditors, including any and all property that may have been sold, conveyed, or assigned by the assignor with the intent to defraud his creditors: Seibert v. Milligan, 110 Ind. 106. Not only did the law bring the money fraudulently transferred by the assignor into the trust estate, but he executed a written order voluntarily surrendering to the assignee all of such property, so that it cannot be claimed that the assignor should receive his exemption from that fund.

This beneficent provision of the statute can only be invoked by one in the character of a householder, and was designed largely for the benefit of those dependent, in a measure, upon the debtor for support, and it cannot be waived by contract prior to the assignment or execution: Maloney v. Newton, 85 Ind. 565; 44 Am. Rep. 46.

Where the right of exemption is conferred by the express terms of the statute, and does not depend upon an enlargement of the statutory provisions by equitable construction, the previous fraud of the debtor in transferring or withholding property subject to execution will not defeat his right to claim exemption.

This doctrine was declared with much force and emphasis in the cases of Haas v. Shaw, 91 Ind. 384, 46 Am. Rep. 607, and Douch v. Rahner, 61 Ind. 64. 537 See, also, upon the same subject, Barkley v. Mahon, 95 Ind. 101; State v. Read, 94 Ind. 103; Over v. Shannon, 91 Ind. 99.

Adopting the interpretation of the exemption laws laid down in these authorities, and which is manifestly just and in keeping

with the generally recognized principles regulating the administration of kindred statutory rights, we are required to hold the answer filed by the assignee insufficient to defeat the rights of the assignor to his exemption.

The judgment is reversed, with costs, with instructions to the trial court to sustain the demurrer to the answer, and proceed further in accordance with this opinion.

FRAUDULENT CONVEYANCES-EXEMPT PROPERTY.-Property exempt from execution is not susceptible of fraudulent alienation: Derby v. Weyrick, 8 Neb. 174; 30 Am. Rep. 827, and note.

ASSIGNMENT FOR THE BENEFIT OF CREDITORS-EXEMP. TION.-Property which is exempt from execution does not pass by the statutory assignment to the assignee: Note to McCulloh v. Price, 43 Am. St. Rep. 641.

BUSHMAN V. TAYLOR.

[2 INDIANA APPEALS, 12.]

SALES-IMPLIED WARRANTY OF QUALITY-MEASURE OF DAMAGES.-In executory sales, as of a large quantity of brick to be delivered from time to time, an implied warranty of quality exists, and the purchaser is not bound to return the goods and rescind the contract, upon discovering a breach, but may set up his damages by reason thereof in a cross-action. The measure of damages is the difference in value between the articles sold and those delivered, at the time and place of delivery.

W. H. Bryan and W. R. Wood, for the appellant.

C. B., T. A., and W. V. Stuart, for the appellees.

13 REINHARD, J. Bushman was the owner and operator of a brickyard in the city of Lafayette, and the appellees, under the firm name and style of the Henry Taylor Company, were lumber dealers in the same city, and engaged in supplying builders and contractors with the necessary materials for the building and construction of houses. The appellees contracted with the appellant for a sufficient quantity of brick, estimated at from three hundred thousand to three hundred and fifty thousand, of a certain size and quality, necessary for the building of a schoolhouse, to be erected by one Longwell, who had contracted with the appellees to supply him with the material for such building. Appellant agreed with the appellees, orally, that he would deliver the brick at the Cleveland, Columbus, Cincinnati & Indianapolis Railway yards in Lafayette, on board the cars, in such quantities

and at such times as they might be called for, during the summer and autumn of the year 1888, and at the price of five dollars per thousand. Appellant alleges in his complaint that, pursuant to this agreement, he delivered to appellees two hundred and sixty thousand brick, which, at five dollars per thousand, would amount to thirteen hundred dollars, and that appellees had only paid him one thousand and fifty dollars, leaving a balance of two hundred and fifty dollars still due him.

The appellees answered the general denial and payment, and also filed a counterclaim and a setoff. The cause was tried by a jury, and the verdict was for the appellees, who were the defendants below. The only error assigned and discussed by appellaut's counsel is the overruling of the motion for a new trial. The causes enumerated in the motion for a new trial, and discussed by appellant's counsel, are, that the verdict is not sustained by sufficient evidence, and that the verdict is contrary to law and the evidence. Something is said, also, in the motion, in reference to some instructions given to the jury, but, as the question is not discussed in counsel's brief, we need not notice it.

In their counterclaim the appellees base their claim for damages upon two grounds: 14 1. The inferiority of the brick; and 2. The failure of the appellant to supply the same as demanded.

It is agreed that appellant delivered, and appellees received, on board the cars in the railroad yard at Lafayette, two hundred and fifty thousand brick. The appellant claims that, as appellees accepted these goods and used them, they are bound to pay the contract price for them; that if appellees were not satisfied with them, they should have rejected them, upon examination, and that, in such cases, the rule of caveat emptor applies the same as in an executed contract. Appellant cites in support of this position 2 Sutherland on Damages, 407; 2 Kent's Commentaries, 479 (490); Fellows v. Stevens, 1 Blackf. 508; Hadley v. Prather, 64 Ind. 137.

The counterclaim proceeds upon the idea that the appellant's agreement to furnish the brick of a certain size and quality, and at a certain time, constituted an implied warranty.

The rule is now well settled that in executory sales such a warranty will be upheld. In such cases, the purchaser is not bound to return the goods and rescind the contract, upon discovering the breach, but may set up his damages, by reason thereof, in a cross-action: Muller v. Eno, 14 N. Y. 597; Brigg v. Hilton, 99 N. Y. 517; 52 Am. Rep. 63; Gaylord Mfg. Co. v. Allen, 53 N. Y. 515 (519). And "where a chattel is to be made or supplied to the

order of the purchaser, there is an implied warranty that it is reasonably fit for the purpose for which it is ordinarily used, or that it is fit for the special purpose intended by the buyer," if known to the seller when the order is given: Benjamin on Sales, sec. 644 (645). See, also, McClamrock v. Flint, 101 Ind. 278; Poland v. Miller, 95 Ind. 387; 48 Am. Rep. 730.

This is not a case of an executory sale of a single article, or of articles in such condition that, upon a full and thorough inspection, the purchaser accepts the same as a compliance with the contract.

15 In Fellows v. Stevens, 1 Blackf. 508, a case cited by appellant, it was held that the defect in the articles would be no defense, and could not be set up as such, by special plea or otherwise; but it is further held in that case that, “if, for any causes, the defendant has any good ground of complaint, he must seek his remedy by cross-action against the person with whom he contracted." This is just what appellees have done in this case.

The measure of damages in such cases is the difference be tween the articles sold and those delivered at the time and place of delivery: Booher v. Goldsborough, 44 Ind. 490; Ferguson v. Hosier, 58 Ind. 438; Cline v. Myers, 64 Ind. 304; Hege v. Newsom, 96 Ind. 426; Blacker v. Slown, 114 Ind. 322.

The evidence tended to prove that the difference in the brick sold and those delivered was fifty cents per thousand, making an item of damage of one hundred and twenty-five dollars, which, under the pleadings and the evidence, the jury had a right to find.

It was further claimed by appellees that, by the appellant's failure to furnish the brick in the quantities and at the times demanded, they were compelled to purchase brick elsewhere to make up the deficiency, and that they were put to an additional outlay. The evidence tends to prove this averment. Stilwell, the general agent and manager of the appellees, testified that he was obliged to purchase about thirty-six thousand extra brick of the kind contracted for with the appellant, and that he was obliged to pay, and did pay, seventy-eight dollars and fifty cents over and above the amount it would have cost if the appellant had delivered the kind of brick contracted for at five dollars per thousand.

The claim of appellant's counsel, therefore, that there was absolutely no evidence to show that appellees had sustained any damages, is not tenable. It is true that Longwell testified that he was the only person interested in the determination of the