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buyer received the shipment and used 42 barrels, out of the 300 bought, at the rate of 3 or 4 per day. After such use the buyer began to receive complaints as to the quality of its putty and thereupon notified the seller that it would hold the remaining barrels as the seller's property. The court held that it had been properly left to the jury to say whether or not the duration and character of the examination were reasonably necessary to determine the quality of the whiting, and that if the jury found that such examination was reasonable, the buyer had not lost its right to refuse title to the rest of the goods.81*
If the court, or jury, decides that the buyer has kept the goods tendered for an unreasonable time, without inspecting them or objecting to them, then it is assumed that he has chosen to keep them despite the difference between what they are and what they should have been. “The delivery of property corresponding with the contract is a condition precedent to the vesting of the title in the vendee. The parties understand that the vendee is not bound to accept the property tendered, except upon this condition. * * * The latter is not bound to receive and pay for a thing that he has not agreed to purchase; but if the thing purchased is found on examination to be unsound, or not to answer the order given for it, he must immediately return it to the vendor, or give him notice to take it back, and thereby rescind the contract, or he will be presumed to have acquiesced in its quality."122
21—Reuben v. Lewis, 46 N. Y. if the retention of possession is S. 426; Saunders v. Jameson, 2 perfectly consistent with the idea C. & K. 557; Gordon v. Waterous, of the buyer's rejection and of title 36 Up. Can. Q. B. 321, delay justi- still resting in the seller. Thus, fied by fact that, seller having in Blackwood v. Cutting Packing failed to deliver as expected, buy- Co., 76 Cal. 212, the buyer's acts er had secured other goods and did not preclude him from denying had no reason to open seller's title, because they had been acpackages at once.
companied with a notice that he 22-Reed v. Randall, 29 N. Y. was acting in the seller's interest 361. This result does not follow only. Cf. Zabriskie v. Central
*See Uniform Sales Act, Section 48.
A pointed illustration is the case of Cream City Gas Co. v. Friedlander.23 The plaintiff sued to recover
v money it had paid defendant for certain soda ash. The ash when delivered was inspected by the plaintiff and found not to conform to the implied terms of the contract and the plaintiff notified the seller that it would not accept. Thereafter, however, the plaintiff “made a practical test of the material by trying to make glass therefrom," and demonstrated that it did not accord with the contract terms. This action, the court held, amounted to an acceptance of the ash and precluded the plaintiff from rejecting it. “It seems clear," said the court, “that the plaintiff was entitled to a reasonable time after actual receipt of the material to exercise the right of rejection in case the goods did not conform to the contract. If this fact could only be ascertained by a practical test, the plaintiff also had the right, within such reasonable time, to make such practical test, using only so much of the material as was reasonably necessary for the purpose, without thereby losing the right of rejection. But this test is plainly for the purpose only of enabling the purchaser to decide whether the material conforms to the contract. If the fact can be determined by inspection alone, the test is not necessary, and the use of the material, therefore, clearly injustifiable. Now in this case, the plaintiff's officers determined at once, and upon inspection alone, that the material was unfit for their purposes, and so notified the defendant, and rejected the entire lot. They did not claim to need any test, they took their position definitely. After that act they could not deal with the property in any way inconsistent with the rejection, if they proposed to insist upon their right to reject. They must do no act which they would have no right to do unless they were owners of the goods. Under these rules it is evident the plaintiff had no right to use up a quantity of the material several weeks after the rejection. By the rejection it became defendant's property if such rejection was rightful. Plaintiff had no right to use any part of it. It is claimed that the use was simply for the purpose of providing evidence of unfitness for the purpose of the trial of this case; but one has no right to use his opponent's property for the purpose of making evidence. The act was an unmistakable act of ownership, and entirely inconsistent with the claim that the material had been rejected and was owned by defendant.”
Vermont R. R., 131 N. Y. 72; Gold Ridge Mining Co. V. Tallmadge, 44 Ore. 34.
As to the presumption of acceptance of the goods as tendered, see also, Barton v. Kane, 17 Wis. 38, "When goods prove defective in quality, it is, in general, incumbent on the purchaser to notify the seller of his non-acceptance on that ground, else he is deemed to waive the objection, and to consent to keep and pay for them according to the terms specified. In such case, it is considered suffi. cient evidence of acceptance that the purchaser has not returned or offered to return the goods, or notified the seller of his non-acceptance." Freedman v, Shoe Mfg. Co., 122 Pa. 25, keeping shoes in stock for two months and selling
some of them held an acceptance.
In Diversey v. Kellogg, 44 Ill. 114, it is suggested that the reten. tion of the goods would make the buyer liable for their value, as distinct from their contract price. So also, Basin & Co. v. Conley, 58 Md. 59.
Unreasonable retention, and use, of a part of the goods tendered was held to constitute an acceptance of the whole of the goods, in Emery Thompson Co. v. Graves, 91 Conn. 71, 98 Atl. 331.
23484 Wis. 53.
Inspection Before Payment. There is a right of inspection whose purpose is entirely different from the one just discussed, but which is often confused with it. This is the right to inspect as a condition precedent to payment. The right of inspection just discussed exists in order that the buyer may know whether the goods offered are those he contracted for, before he takes or refuses the title to them. It presupposes that the contract has been in respect to unidentified, though described, goods so that title did not pass at the time of making the contract, or that, for some other reason, title has not already passed to the buyer.
But when the parties have contracted concerning a specifically identified chattel, the rule is that title presumably passes at the time the contract is made, regardless of payment or change of possession. When, therefore, the possession of such a chattel is offered to the buyer and payment demanded, the buyer's inspection or non-inspection can not affect the title-title is already in the buyer.
If he has contracted to pay at a certain date, prior to delivery of the goods to him, he would break the contract by refusing to pay. But if delivery of the chattel is to precede, or to be concurrent with, payment, he need not pay until the very chattel he bought is delivered or offered to him. Furthermore, he need not take the seller's word that the chattel offered is the one contracted for; he has the right to see for himself. If this opportunity to see for himself is not given, he is not in breach of the contract if he refuses to pay.* The title is none the less in him, but he does not have to pay until he receives possession, and he does not have to take possession without knowing that he is getting the chattel he contracted for.
This right to inspect before payment may, like the right to inspect before taking title, be waived, and such waiver may be implied from the terms of the contract and the acts of the parties. An agreement, for instance, that the goods are to be sent to the buyer “C. 0. D.” may preclude his right to any inspection before payment. Such may be the effect of a failure to examine the goods at a reasonable time, or contracting for their delivery in such a way that inspection before coincident payment is impracticable.247
24-Sawyer v. Dean, 114 N. Y. S. 793, agreement to pay on pre169; Whitney v. McLean, 38 N. Y. sentation of bill of lading; Law.
*See Uniform Sales Act, Section 47, (1), (2). See Uniform Sales Act, Section 47, (3).
This waiver of inspection before payment, however, does not necessarily affect title to the goods. If title has already passed, at the time of the contract, or by seller's delivery to a carrier of goods conforming to the contract, inspection or failure to inspect does not affect it; it is in the buyer and remains in him. On the other hand, if the goods received by the buyer are not in fact the goods he contracted for, neither his mere physical acceptance of them, as we have seen, nor his payment for them, necessarily implies a willingness to take title despite the seller's failure to perform.
Performance of Conditions by Seller.Both of these rights of inspection are for the purpose of giving the buyer opportunity to learn whether the thing offered by the seller is in fact what the buyer contracted to take. This, then, involves a question in each case of just what it was that the seller agreed to transfer and the buyer to accept.
What Conditions Are.-Whether or not the seller has tendered the goods contracted for by the buyer depends obviously on the terms of the contract; that is to say, upon those terms of the contract which relate to the identity of the goods intended to be covered by it. These terms of identifying description, to which goods tendered must conform to be the goods contracted for, are usually called "conditions."126
ton & Sons Co. v. Mackie Grocery Co., 97 Md. 1, agreement to pay on delivery to a named place; Polenghi Bros. v. Dried Milk Co., 49 Sol. Jr. 120.
25-Although the term “war. ranty" is usually applied to those terms of description which do not affect the precise identity of the goods contracted for, it is sometimes used of those parts of description for non-conformity to
which the buyer may refuse them.
But, as some courts allow rejection of title of goods which are indubitably those contracted for, but which do not conform to the terms of the contract in other respects than identity, (see p. 182) the use of the word "warranty" itself indicates nothing.