in such a case it is safe to assume that it would generally be held in the absence of other evidence of assent to an accord and satisfaction that the buyer could recover damages for the failure to deliver as much as the seller had agreed to deliver.63 If such assent could be established, there would be no difficulty in finding sufficient consideration, unless the changed agreement involved a delivery of a smaller quantity than that contracted for, at the price of the larger quantity. It may be observed that where there is defective quantity the seller must generally be assumed to have knowledge of the fact and not to dispute it. Whereas when quality is alleged to be defective this cannot be said. If too large a quantity is sent and accepted, the conclusion of assent to a substituted bargain is irresistible. Where goods are delivered in instalments, however, an insufficient quantity may be accepted on the assumption that the remainder will be delivered later. In such a case the buyer if still able to do so may return what he has received and refuse to pay for them or, if he has already paid, may recover the payment.65

704. The buyer may sue for delay in performance.

Lord Blackburn in his treatise on the Law of Sales 66 says: "The vendee may accept the goods and bring his action for any damages he may have actually suffered in consequence of the late delivery. He does not by accepting the late delivery waive any claim he may have for damages arising from the delay." This rule is acknowledged in most of the American

"Titley v. Enterprise Stone Co., 127 Ill. 457, 20 N. E. 71; Harber v. Moffat Cycle Co., 151 Ill. 84, 37 N. E. 676; Hjorth v. Albert Lea Mach. Co. (Minn.), 172 N. W. 488; Fox v. Baggett, 101 Miss. 519, 58 So. 481; Avery v. Willson, 81 N. Y. 341, 37 Am. Rep. 503; Kipp v. Meyer, 5 Hun, 111; Hall . New Hartford Canning Co., 153 N. Y. App. Div. 562, 138 N. Y. S. 866. The buyer is liable to pay for what he accepts. Lorraine Mfg. Co. v. Oshinsky, 182 Fed. 407; Hall v. New Hartford Canning Co., 153 N. Y. App. Div. 562, 138 N. Y. S. 866; and infra, § 958.

64 Capper v. Manufacturers' Paper Co., 86 Kans. 355, 121 Pac. 519; Linger v. Wilson, 73 W. Va. 669, 80 S. E. 1108.

65 Oxendale v. Wetherell, 9 B. & C. 386, 387; Colonial Ins. Co. v. Adelaide Ins. Co., 12 A. C. 128, 138, 140; Boyd v. Second Hand Supply Co., 14 Ariz. 36, 123 Pac. 619; Polhemus v. Heiman, 45 Cal. 573; Williston, Sales, § 460.

66 (2d ed.), 524. The doctrine of the text is supported by the later decision of Clydebank Co. v. Yzquierdo y Castaneda, [1905] A. C. 6.

decisions. It seems to be generally assumed that if the buyer does accept delayed performance as full satisfaction of the seller's obligation, he has no further claim, but some evidence other than mere acceptance of the goods is necessary to warrant this conclusion.68 Payment of the price in full has been held sufficient evidence of assent,69 and so has giving a note for the price after the delayed receipt of the goods.70 Either of these circumstances undoubtedly shows assent on the buyer's part, but it is troublesome to find a sufficient consideration. Even though there was assent to an accord and satisfaction when the goods were received, the only consideration for the buyer's agreement to surrender his right to damages for late

delivery, is the actual delivery of the goods. It may be urged that the late delivery is a different thing from the earlier delivery and therefore the consideration is valid. If the late delivery involves a corresponding delay in payment, this seems true and sufficient, but if payment has already been made, or the time of payment is fixed without regard to the date of delivery, it would seem that late delivery though a different thing from early delivery must be regarded as a worse thing. It certainly is true that delayed payment of money is a worse thing than early payment, and will not serve as consideration.71 Similar difficulties arise where the price has been paid in full, or a note given for it. If the payment is not made until the time of the delivery of the goods, what has been said sufficiently indicates that there will generally be sufficient consideration to support the agreement of the parties.72 If, however, the payment is made at the same fixed date as if there had been prompt delivery of the goods, and assent at the time of delivery is relied upon, as a discharge of the seller from liability for his delay, on ordinary principles of contract there must be consideration given at that time, for the buyer's agreement to surrender his claim. This cannot possibly be found.

It may well be that the English court would follow this reasoning and hold the agreement invalid, but it seems evident that American courts overlook or disregard the point, and the situation must probably be accepted by an American lawyer as one of the cases where an agreement to surrender a right is binding without seal, consideration or estoppel. A few cases, indeed, hold as matter of law that the acceptance of the goods necessarily involves an acceptance of them as full satisfaction of the contract and discharges any right to damages for the delay.73 In a few other decisions the same rule is laid down,

71 See supra, § 120. See also Weeks v. Rector, 56 N. Y. App. D. 195, 200, 67 N. Y. S. 670.

72 There would not be unless the payment would have been due earlier had the goods been seasonably delivered.

"Fraser v. Ross, 1 Pennew. 348, 41 Atl. 204; Jones v. Bloomgarden, 143

Mich. 326, 106 N. W. 891; Burrowes Co. v. Rapid Safety Filter Co., 97 N. Y. S. 1048; 45 N. Y. Misc. 539; Baker v. Henderson, 24 Wis. 509. In Lee v. Bangs, 43 Minn. 23; s. c., sub nom., Sole Leather Over Mfg. Co. v. Bangs, 44 N. W. 671, acceptance of goods prematurely sent was said to conclude the buyer's rights.

but subject to the qualification that the buyer's acceptance to have this effect must be without making objection on the ground of delay.74 Acceptance of goods prematurely offered may more readily warrant the conclusion of acceptance as full satisfaction, since if the buyer preferred to have the goods strictly at the time when performance was due, he could probably secure this result by a refusal to receive them earlier.75 Analogous to the case of late delivery of goods is a situation where the owner of premises delays a contractor in the performance of his contract. The election of the contractor to continue performance in spite of the delay does not deprive him of a right to damages therefor.76

§ 705. Circumstance under which the buyer may have a right to sue for defective quality.

In the discussion of the seller's liability for defective quality of goods which have been accepted by the buyer, it must be borne in mind that the question cannot arise unless the seller has broken a promise. If the seller's performance fulfills his obligation in regard to the quality of goods whether because the seller made no promises in regard to their quality or because such promise as he did make has been fulfilled, no question can arise as to his liability. The hypothesis, is, therefore, that the goods which the seller tenders in his performance of the contract might have been refused by the buyer on account of the seller's failure to fulfill his obligation. The obligation of the seller may have been stated either in adjective form as part of the description of the goods (what has been called a condition by some writers and judges)," or the broken promise may have been in the form of a collateral warranty, or it may have been a warranty implied by law. It is to be noticed that all these

74 Baldwin v. Farnsworth, 10 Me. 414; Minneapolis Threshing Machine Co. v. Hutchins, 65 Minn. 89, 67 N. W. 807; Bock v. Healy, 8 Daly, 156; Jones v. Nat. Printing Co., 13 Daly, 92.

75 Lee v. Bangs, 43 Minn. 23; s. c., sub nom., Sole Leather Over Mfg. Co. v. Bangs, 44 N. W. 671. See also Ros

enthal v. Rambo, 165 Ind. 584, 76 N. E. 404, 3 L. R. A. (N. S.) 678.

76 Louisville &c. R. Co. v. Hollerbach, 105 Ind. 137, 5 N. E. 28; Weeks v. Rector, 56 N. Y. App. D. 195, 67 N. Y. S. 670.

77 See criticism on this nomenclature, supra, § 665; Williston, Sales, $179.

possible forms of obligations are equally possible where the seller's breach of duty is a delay in time. The obligation to perform within a certain time, though not naturally stated as part of the description of the goods, may be so stated. It is more naturally and commonly stated as a collateral stipulation. If no provision in regard to time is stated in the contract, the obligation to perform within a reasonable time will be implied."

§ 706. Buyer's agreement to surrender his right must be proved as a fact.

In the cases relating to default in time, the results reached do not seem to have been made to depend on the way in which the seller bound himself to perform within a certain limit of time. It is hard to see why any greater importance should be given to such distinctions where the seller's breach of duty relates to the defective quality of the goods. It is doubtful if the intention of the parties varies with the form in which the promise is put, whether as part of the description of the goods, or as a strictly collateral warranty. No doubt it is possible, however, for the buyer not merely to accept title to the goods offered, but to accept the transfer of title as full satisfaction of all the seller's obligations under the contract. Whether the buyer thus agrees to waive deficiencies in performance is logically and should, it seems, be legally a question of fact in each case, unless the seller has made it clear that the goods, such as they are, must be taken as full satisfaction, if taken at all. In that case it may well be that the buyer must refuse the goods or surrender any claim for their defects. But that case seldom occurs. What is here insisted upon is that in the ordinary case where goods are offered without discussion, the mere fact that title to the goods has been accepted does not, of itself, warrant the conclusion that the buyer has agreed to surrender a claim against the seller because the latter failed to perform his promise. The view here advocated, that acceptance of title does not as matter of law indicate a waiver of claims for inferior quality of the goods, is supported by a

78 See supra, § 38.