is presented for his acceptance (22). In Doane v. Dunham (23) where it was shown to be the well established custom of trade, among wholesale dealers in standard powdered sugar in Chicago, to handle the same in original packages, with no examination as to quality or condition upon purchase or sale thereof, it was held that purchasers, who dealt pursuant to the custom, were not liable for the price of sugar purchased by them and damaged by fire after delivery, if the sugar were shown to have been caked and not in the condition contemplated by the parties, and if, as soon as they found out that it was damaged when sold, they offered to return it and notified the seller to take it away and he neglected so to do. Where an article is one which must be used before its quality can be ascertained, it is the right of the purchaser to make use of so much thereof as, under all the circumstances, may become actually necessary for that purpose, without liability for the same if it fails, in the test, to fulfill the contract (24). Where goods are sent by express and the buyer is, by the terms of the contract, to pay the price to the express company, by whom it is to be remitted to the seller, the buyer is not entitled to inspect the goods before payment of the price (25). § 89. What constitutes acceptance. "The buyer is deemed to have accepted the goods when he intimates (22) (23) (24) Isherwood v. Whitmore, 11 M. & W., 347. 79 Ill., 131. Philadelphia Whiting Co. v. Detroit Lead Works, 58 Mich., 29. (25) Wiltse v. Barnes, 46 Iowa, 210. to the seller that he has accepted them, or when the goods have been delivered to him and he does any act in relation to them which in inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them" (26). In Lyon v. Bertram (27) there was a sale of a cargo, about 2,000 barrels of Haxall flour. A part was delivered and paid for and sold by the buyer to customers. The flour proved to be of another brand, plainly marked on each barrel, but of the same grade and value as Haxall. The buyer, having used the goods as owner by reselling a part of them, put it out of his power to rescind the contract. The buyer accepts the goods when he manifests his assent to the passing of the property to himself or when he acts toward the goods in a manner consistent only with ownership in himself, as by a resale, by consuming them, or by retaining the goods an unreasonable length of time without rejecting them. § 90. Acceptance does not bar action for damages. "In the absence of an express or implied agreement of the parties, acceptance of the goods by the buyer shall not discharge the seller from liability in damages or other legal remedy for breach of any promise or warranty in the contract to sell or the sale. But, if, after acceptance of the goods, the buyer fails to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows, or ought (26) Sales Act, sec. 48. (27) 20 Howard, 149. to know of such breach, the seller shall not be liable therefor" (28). This is in accordance with a simple doctrine in the law of contracts, that where one party to the contract performs only partially or in a manner inferior to that demanded by the terms of the contract, the other party may rescind the contract altogether, or he may accept the partial or defective performance and hold the other party liable in damages for his default. If, after acceptance of the part or defective performance, the party not in default fails to make any claim upon the other party within a reasonable time, he is deemed to have waived any cause of action for the other party's default. The above provision of the Sales Act is simply an application of that principle to a contract of sale. The buyer may accept the goods and hold the seller liable for damages on account of failure to deliver the entire quantity contracted for, or for supplying goods of an inferior quality, or for not delivering the goods within the required time. § 91. Buyer is not bound to return goods wrongly delivered. "Unless otherwise agreed, where goods are delivered to the buyer, and he refuses to accept them, having the right so to do, he is not bound to return them to the seller, but it is sufficient if he notifies the seller that he refuses to accept them" (29). In such case, the buyer has possession of the goods as a bailee and is under the obligations of a bailee in re (28) Sales Act, sec. 48. (29) Sales Act, sec. 50. gard to the care and custody of the goods. He may have the goods stored at reasonable expense, at the expense of the seller, and, in some cases, may sell the goods for the benefit of the seller, as in the case of perishable goods. The buyer must act in good faith and with a view to saving the seller as much loss as possible. § 92. Buyer's liability for failing to accept delivery. "When the seller is ready and willing to deliver the goods, and requests the buyer to take delivery, and the buyer does not within a reasonable time after such request take delivery of the goods, he is liable to the seller for any loss occasioned by his neglect or refusal to take delivery, and also for a reasonable charge for the care and custody of the goods. If the neglect or refusal of the buyer to take delivery amounts to a repudiation or breach of the entire contract, the seller shall have the rights against the goods and on the contract hereinafter provided in favor of the seller when the buyer is in default" (30). It is not only the duty of the seller to deliver the goods according to the terms of the contract, but it is also the duty of the buyer to accept such delivery at the time called for by the contract or within a reasonable time, and, upon failure, he is liable for his breach of contract, and the damages will be assessed according to the injury inflicted upon the seller-such damages as may fairly and reasonably be considered either arising naturally or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made (30) Sales Act, sec. 51. the contract, as the probable results of the breach of it (31). See the article on Damages in Volume XI of this work. A reasonable charge for warehouse room is within the rule (32). If the property in the goods has not passed, the seller is not entitled to compensation for the care and custody of his own goods. His only remedy is upon the breach of contract, and he has but one cause of action. In Pakas v. Hollingshead (33) there was a sale of 50,000 pairs of bicycle pedals, to be delivered in instalments. After about 2,600 were delivered, the seller failed to make further delivery. When about 19,000 pairs should have been delivered, according to the contract, the buyer sued for damages for the failure to deliver that number and recovered in his action. After the time when the entire contract should have been performed, according to its terms, the buyer sued for the breach of the entire contract, or the failure to deliver the instalments subsequent to those for the failure to deliver which the former suit was brought. It was held that the former action barred the buyer from further recovery. The buyer should have treated the failure to deliver, after the first instalments were delivered, as an entire breach of the contract. The seller is not to be harassed by successive suits for successive partial breaches. (31) Hadley v. Baxendale, 9 Ex., 353. |