are accepted "in full discharge of the contract," the buyer's rights are satisfied and he cannot thereafter sustain a claim for damages; but in England, and in most of our jurisdictions, he may accept goods which do not conform to the contract, thereby becoming their owner, and precluding himself from subsequently rejecting them, and yet retain his right to damages for their non-compliance with the contract.2

223. Reasons for Prevailing View. — The prevailing view is presented in a recent decision as follows: "The fact of acceptance, however, as a matter of evidence, may have great weight on the question of satisfactory or sufficient performance. In the first place, it raises considerable presumption that the article delivered actually corresponded with the agreement. In the next place, it is some evidence of a waiver of any defect of quality, even if the article did not so correspond, evidence of more or less force according to the circumstances of the case. If the goods be accepted without objection at the time, or within a reasonable time afterwards, the evidence of waiver, unless explained, might be considered conclusive. But if, on the other hand, objection is made at the time, and the vendor notified of the defects, and the defects are material, the inference of waiver would be altogether repelled. But acceptance accompanied by silence is not necessarily a waiver. The law permits explanation, and seeks to know the circumstances which induced acceptance. It might be that the buyer was not competent to act upon his own judgment, or had no opportunity to do so, or declined to do so, as a matter of expediency, placing his dependence mainly, as he has a right to do, upon the" engagement "of the seller. Upon this question the facts are generally for the jury under the direction of the court."

3

1 Underwood v. Wolf, 131 Ill. 425, 442; 23 N. E. 598 (1890); Burdick's Cases on Sales, 401.

2 North Alaska Salmon Co. v. Hobbs, Wall & Co., 159 Cal. 380; 120 Pac. 27 (1911), refusing to follow Reed v. Randall, 29 N. Y. 358 (1864), and kindred cases; Filter Co. v. Ice Co., 84 Kan. 705, 708; 115 Pac. 635 (1911); Sumwalt Ice & Coal Co. v. Knickerbocker Ice Co., 112 Md. 437; 77 At. 56 (1910); White v. Oliver, 32 Okla. 479; 122 Pac. 156 (1912); goods received under protest; Uniform Sales Act, § 49.

3 Morse v. Moore, 83 Me. 473, 481; 22 At. 362; 13 L. R. A. 224; 23

224. A Different View of the Effect of Acceptance. — According to the foregoing view the buyer, by taking title to the property, may transform a promissory condition into a warranty.1 In some jurisdictions, however, no such election is accorded to the buyer. If the seller's engagement as to the quality of the article is a condition, that is, an essential term of the sale contract, and not a mere warranty or collateral agreement, — the purchaser by accepting the article deprives himself "of any right to make complaint of its inferior quality," provided its defects were known to the purchaser, or could have been discovered upon a reasonable inspection.2 The right is not lost, however, in case the defects "are such as would not appear upon an inspection to ascertain whether the article delivered corresponded with that described in the contract." 3

225. This View leads to Arbitrary Distinctions. - The courts which deny that a right to damages can survive the buyer's acceptance of goods which do not conform to the seller's description, find it necessary to resort to rather arbitrary distinctions. For example, the seller's engagement to furnish “No. 1 extra foundry pig-iron of the Coplay Iron Co. (Limited) make,” Am. St. R. 783 (1891); Northwestern Cordage Co. v. Rice, 67 N. W. 298; 5 N. D. 432 (1896); Burdick's Cases on Sales, 407; Springfield Shingle Co. v. Edgecomb Mill Co., 52 Wash. 620; 101 Pac. 233 (1909); Davidson Bros. v. Smith, 143 Ia. 124; 121 N. W. 503 (1909).

1 Anson on Contracts (Huffcut's ed.), 183; Sale of Goods Act, § 11 (1) (a); Wolcott v. Mount, 36 N. J. L. 262, 267 (1873); Burdick's Cases on Sales, 300. See Uniform Sales Act, §§ 11 (1), 69 (1), (a).

2 Coplay Iron Co. v. Pope, 108 N. Y. 232, 236; 15 N. E. 335 (1888); Burdick's Cases on Sales, 410; Parks v. O'Connor, 70 Tex. 377, 390 (1880); McClure v. Jefferson, 85 Wis. 208; 54 N. W. 777 (1893); Talbot Paving Co. v. Gorman, 103 Mich. 403; 61 N. W. 655 (1894); Burdick's Cases on Sales, 412; Am. Theater Co. v. Siegel, Cooper & Co., 221 Ill. 145; 77 N. E. 588; 4 L. R. A. N. s. 1167 (1906); Columbus, etc. Co. v. See, 169 Mich. 661; 135 N. W. 920 (1912); Patrick v. Norfolk Lumber Co., 81 Neb. 267; 115 N. W. 780 (1908); Ferguson v. Netter, 204 N. Y. 505; 98 N. E. 16 (1912), now repudiated by Uniform Sales Act, N. Y. L. 1911, ch.571, § 150; Milling Co. v. Supply Co., 36 Utah, 121; 103 Pac. 242 (1909).

3 Carleton v. Lombard, 149 N. Y. 137, 153; 43 N. E. 422 (1896); Burdick's Cases on Sales, 355; Bierman v. City Mills Co., 151 N. Y. 482; 45 N. E. 856 (1897); Burdick's Cases on Sales, 341; L. & J. A. Stewart v. Blue Grass Co., 133 Ky. 118; 117 S. W. 401 (1909); Procter v. Atlantic Fish Cos., 208 Mass. 351; 94 N. E. 281 (1911); Johnston v. Lanter, 87 Kan. -; 123 Pac. 719 (1912).

although that language is descriptive of "a grade of pig-iron of certain well-known quality in the market," is treated as a condition that does not survive acceptance of the goods by the purchaser; while his engagement to furnish "Powelton coal of same quality and kind as furnished you during the past year" is held to be a warranty and to survive acceptance.2

1

226. The Origin of this Anomalous View. - The doctrine under consideration was formulated by judges who adhered rigidly to the maxim of caveat emptor. In the earliest New York case on this subject, an action by the buyers for damages upon the purchase of an article, described by the vendor as brazilletto wood, but which was in fact peachum wood, Thompson, J., said: "The question then arises, whether there was an implied warranty, so as to afford redress to the plaintiffs, or whether the maxim caveat emptor must be applied to them;" and the answer given by the majority of the court was that the maxim must be applied. "Either an express warranty or some fraud or deceit on the part of the vendor is necessary to be shown, in order to entitle the purchaser to the remedy sought after in the present case." 3

4

In other cases, the doctrine has been defended on the ground that it secures the vendor from being surprised into an implied warranty which he had no intention of making, while it prevents the purchaser from obtaining an article at a less price than he would have been compelled to pay, if he had required an express warranty. Still other judges have argued in support of this doctrine that it provides a certain and simple rule for contracting parties, and have prophesied that the English doctrine "would be attended with a great increase of

1 Coplay Iron Co. v. Pope, 108 N. Y. 232; 15 N. E. 335 (1888); Burdick's Cases on Sales, 410. Accord, Heath Dry Gas Co. v. Hurd, 193 N. Y. 255; 86 N. E. 18 (1908).

2 Zabriskie v. Cent. Vt. Ry., 131 N. Y. 72; 29 N. E. 1006 (1892). Compare Gaylord Mnfg. Co. v. Allen, 53 N. Y. 515 (1873); Burdick's Cases on Sales, 415, with Fairbank Co. v. Metzger, 118 N. Y. 260 (1890); Burdick's Cases on Sales, 418.

Seixas v. Woods, 2 Caines, 48, 52, 54 (1804).

4 Waring v. Mason, 18 Wend. 425, 448 (1837); Hargous v. Stone, 5 N. Y. 73, 90 (1851).

litigation, and consequently with new embarrassments upon trade." 1

4

227. English Cases misunderstood. A fourth consideration urged in favor of this anomalous view is that "it would be unjust to permit the vendee to retain the goods after opportunity for inspection, giving no sign, and subsequently claim that they were not according to contract."2 In a leading New York case, that principle was declared to be "well supported by authority." The only English cases cited, however, were nisi prius decisions which were long ago distinguished or overruled.5 Certainly, since 1816, it has been well established in England, that upon a sale by description, the buyer does not waive his claim for damages by accepting and retaining goods which do not conform to the description, even when he discovers the defect at the time of delivery and does not notify the seller thereof. His retention of the goods and his failure to give notice of defects are of importance only as evidence bearing on the question, whether the defects existed at the time of delivery."

If

228. It is admitted even in New York that a contract to sell and deliver a described article in the future "carries with it an obligation that the article shall be merchantable." the seller fails to perform that obligation, and breaks the contract by tendering unmerchantable goods, why does not an action lie for the breach of his promise made for a valuable consideration, even though the buyer receives

1 Wright v. Hart, 18 Wend. 449, 463 (1837); s. c. in Supreme Court, 17 Wend. 267, 275 (1837).

2 Mack v. Snell, 140 N. Y. 193, 197; 35 N. E. 493 (1893). Reed v. Randall, 29 N. Y. 358, 363 (1864).

♦ Grimaldi v. White, 4 Esp. 95 (1802); Fisher v. Samuder, 1 Camp. 190 (1808); Hopkins v. Appleby, 1 Stark. 477 (1816); Milnor v. Tucker, 1 C. & P. 15 (1823).

5 See Benjamin on Sales (Bennett's ed., 1899), §§ 897, 900; Campbell on Sales (2d ed.), 512; Poulton v. Lattimore, 9 B. & C. 259 (1829).

Yeats v. Pim, 2 Marshall, 141; s. c. sub nom. Yates v. Pym, 6 Taunt. 446 (1816), a case carefully considered by Gibbs, C. J., and Dallas and Park, JJ.; Freeman v. Baker, 5 C. & P. 475 (1833), especially answer to foreman of jury by Denman, C. J., at 483.

"Hargous v. Stone, 5 N. Y. 73, 86 (1851).

and retains them? It certainly lies, if the buyer rejects them.2

4

229. Effect of Acceptance (1) when Contract is entire; (2) when it is severable. If the contract is entire,3 the buyer cannot accept a part and reject the remainder of the goods in the absence of an agreement to that effect. By receiving and retaining a portion he transforms the condition into a warranty, and limits himself to a claim for damages. In case the contract is severable, however, the buyer may accept any class of the goods without affecting his right to reject other classes." Whether a particular contract is entire or severable depends upon the intention of the parties as disclosed by all of the facts of the case.

6

230. Against Third Parties. The rights of the buyer against third parties, who have obtained possession of the goods as a result of the seller's breach of an essential term of his sale contract, depend upon the question whether such

1 Benjamin on Sales (Bennett's ed., 1899), § 897. The author declares that it is taken for granted in all the cases that the buyer may, after receiving and accepting the goods, bring his action for damages.

2 Hamilton v. Ganyard, 2 Abb. App. Dec. 314; 3 Keyes, 45 (1886); Burdick's Cases on Sales, 671.

Cahen v. Platt, 69 N. Y. 348 (1877), (contract for the sale of 10,000 boxes of glass of approved standard qualities); Uniform Sales Act, §§ 44, 76; Boyd v. Second Hand Supply Co., Ariz.; 123 Pac. 619 (1912).

Sale of Goods Act, § 11 (1) (c); Lyon v. Bertram, 20 How. (U. S.) 149, 154, 155 (1857); Burdick's Cases on Sales, 423.

5 Pierson v. Crooks, 115 N. Y. 539, 554, 555; 22 N. E. 349 (1889), (contract for a specified quantity of iron hoops at a fixed price and a designated quantity of iron sheets at a different price); Potsdamer v. Kruse, 57 Minn. 193; 58 N. W. 983 (1894), (contract for ten different styles of neckties, the quantity, description, and price of each style being separately specified); Duluth Log Co. v. John C. Hill Lumber Co., 110 Minn. 124; 124 N. W.967 (1910), (contract for three car loads of No. 1 white cedar shingles of seller's manufacture; acceptance of two does not preclude buyer from rejecting third car load, which did not conform to description).

6 Cases in the last three notes and Young v. Wakefield, 121 Mass. 91 (1876); Craig v. Lane, 212 Mass. 195; 98 N. E. 685 (1912); Berlin Machine Works v. Miller, 59 Wash. 572; 110 Pac. 422 (1910); Caldwell Bros. & Co. v. Coast Coal Co., 58 Wash. 461; 100 Pac. 1075 (1910); Rubin v. Sturtevant, 80 Fed. 930 (1897); Meyer v. Everett Pulp & P. Co., 193 Fed. 857 (1912); Walti v. Gaba, 160 Cal. 324; 116 Pac. 963 (1911).