like "is only for the purpose of providing against accidental variations arising from slight and unimportant excesses or deficiencies in number, measure, or weight." Hence, a con

tract for "about 300 quarters, more or less, of foreign rye," does not warrant the seller in supplying 345 quarters; nor is one for "23,000 feet of lumber, more or less," performed by furnishing 16,000 feet. In these cases, the deficiency or excess was so great that people would not ordinarily consider it as included in the qualifying words, and the court properly held that the seller had not complied with his contract. As a rule, however, it is a question for the jury whether the permitted deviation has been exceeded.5

191. An Estimated Quantity. - A specific quantity may be named, however, not to define the subject of the contract, but as an estimate of the probable amount to be supplied. Such is the case where the parties agree upon the purchase and sale of a particular lot of iron, estimated by the buyer "at about 150 tons," and by the seller at that "or more," but which contains only 44 tons; or of 880 cords of wood, more or less, as shall be determined to be necessary by the post commander for the current year's supply for the garrison of his post; 7 or of the whole of the steel for the Forth Bridge, "the estimated quantity to be 30,000 tons, more or less; "8 or of all the steers and dry cows on the seller's range, and to be acquired under cer

6

1 Brawley v. United States, 96 U. S. 168, 172 (1877); Burdick's Cases on Sales, 368; Moore v. U. S., 196 U. S. 157; 25 Sup. Ct. 202; 45 L. ed. 428 (1905); Pope v. Ferguson, - N. J. L. —; 83 At. 353 (1912).

2 Cross v. Eglin, 2 B. & Ad. 106 (1831). "The meaning probably was, that if the quantity came to anything near that which had been named, and there was a little excess, the plaintiffs would not inconvenience the defendants by leaving it upon their hands" (p. 110).

Creighton v. Comstock, 27 Ohio St. 548 (1875).

♦ Morris v. Levison, 1 C. P. D. 155, 158 (1876). “I think the direction to the jury has always been that the deviation must not be very large. The difference must be such as people would ordinarily consider as inIcluded in the word 'about.' There can be no exact rule of law as to the percentage of difference allowed, but I have known juries often allow in practice 3 per cent." Cabot v. Winsor, 1 Allen (Mass.), 546 (1861), accord. 5 Clapp v. Thayer, 112 Mass. 296 (1873).

McLay v. Perry, 44 L. T. N. s. 152 (1881).

7 Brawley v. United States, supra.

8 Tancred v. Steel Co., 15 App. Cas. 125, 135 (1890).

tain contracts, estimated at 6,500 head, more or less; 1 or all the spars manufactured out of a designated lot of timbers, say about 600, averaging by culler's measurement sixteen inches in diameter.2

In each instance the quantity is specified, not for the purpose of making it an essential term of the contract, but by way of stating what the parties "understood to be the fact." 3 The substantial engagement, in the absence of fraudulent representations, is to supply the particular lot of iron, the year's supply of wood as determined by the post commander, the whole of the steel for the Forth Bridge, whatever the quantity, all the steers and dry cows on the seller's range or acquired under the described contracts, however numerous, or whatever spars, made from the timbers in question, average sixteen inches in diameter, though they number only 496.4

5

192. Contract for a "Cargo." — The quantity of goods which the seller must supply under a contract for "a cargo," generally depends upon the circumstances of each case. If the parties use the term with reference to a particular ship, the subject of the contract is the quantity of the described goods which that ship will safely carry; unless a different intention is disclosed by other provisions of the agreement. When no vessel is designated, and no reference is made to the size of the cargo, the seller is probably bound to supply a full cargo by a vessel usually engaged in transporting goods of the agreed kind over the stipulated route. Ordinarily, however, if no vessel is designated, the agreement contains, in addition to the term cargo," some specification of quantity, as "a cargo of barley of about nine thousand bushels." 7 It then becomes necessary to decide whether the subject of the contract is the entire load

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1 Morris v. Wibaux, 159 Ill. 627, 643, 644; 43 N. E. 839 (1896).

2 McConnel v. Murphy, L. R. 5 P. C. 203 (1873).

3 Tancred v. Steel Co., 15 App. Cas. 125, 135 (1896).

Accord, Inman Bros. v. Dudley & D. L. Co., 146 Fed. 449; 76 C. C. A. 659 (1906); White v. U. S., 38 App. D. C. 131 (1912).

5 Pembroke Iron Co. v. Parsons, 5 Gray (Mass.), 589 (1856); Burdick's Cases on Sales, 371.

Bourne v. Seymour, 16 C. B. 337; 24 L. J. C. P. 207 (1855).

7 Flanagan v. Demarest, 3 Robt. (N. Y.) 173, 181, 182 (1865).

of the vessel by which the goods are in fact shipped, or whether it is the quantity specified.

193. The English courts have generally construed contracts of this kind to call for "the entire quantity of goods loaded on board a vessel on freight for a particular voyage." It is said, "There are various reasons why a purchaser may wish to buy the whole quantity of goods loaded on board a particular vessel. Such a contract gives him the complete control of the vessel. It enables him to select the port of discharge, to appoint the place in the port at which the discharge is to take place, to be free from the inconvenience of other persons' goods being unloaded at the same time with his own, and from the competition arising from other persons' goods being ready for sale at the same place and at the same time with his." It also saves him from danger of being "required to pay freight for the whole cargo, before he could obtain possession of what was his own." 2

194. This view has been taken by our courts. The headnote to the case last cited is misleading. The court did not hold that a contract for the sale of a cargo of from seven hundred to eight hundred tons of sugar to be shipped from a certain port is fulfilled by the delivery of only seven hundred tons, though shipped from said port as part of a cargo of eight hundred and forty-one tons," but that "as the defendants might have performed their contract by shipping a cargo of seven hundred tons, in assessing damages for a breach of the contract, they may select that alternative which is least burdensome to them;" and that, as plaintiff received seven hundred tons at the contract price, although without prejudice to its right, if any, to demand the delivery of the remainder of the cargo of eight hundred and forty-one tons, plaintiff could not recover any damages. But the court expressly declares, "If the price of sugar had fallen instead of advanced, the plaintiff might have declined to receive any part of the cargo, on the principle that a cargo means the entire load of the ship

1 Borrowman v. Drayton, 2 Exch. Div. 17, 19 (1876).

2 Kreuger v. Blanck, L. R. 5 Ex. 179, 184 (1870).

Flanagan v. Demarest, supra; Standard Sugar Refinery v. Castano, 43 Fed. 279 (1890).

which carries it; and that a contract for a cargo of from seven hundred to eight hundred tons is not performed if more or less than that quantity is delivered."

195. Goods must not be mingled with others. - The seller does not supply the agreed chattel when he tenders an article answering the contract description so mixed with other goods that the buyer incurs the risk of being charged with an acceptance of all, or is put to any difficulty in separating it, or is subjected to any liability for the care of the other goods. Nor does the seller improve his position by offering to pay the buyer for any trouble or expense incurred in separating the goods which conform to the contract from the others.2 The buyer has a right to stand upon the original contract, and is not bound to make a new one.

196. Modification of this Rule in many Jurisdictions. - In jurisdictions where the doctrine of Kimberly v. Patchin3 prevails, the seller may satisfy his contract obligation by furnishing the specified quantity of goods as a part of a larger bulk of uniform kind and quality, where the act of separation throws no additional burden on the buyer, or when the terms of the contract 5 or the prior dealings of the parties warrant this mode of performance.

6

197. Seller engages for Inspection by Buyer. Whether the goods furnished by the seller are the goods agreed upon is not

1 Levy v. Green, 28 L. J. Q. B. 319, 320 (1859); Tarling v. O'Riordan, L. R. 2 Ir. 82, 87 (1878); Hoffman v. King, 58 Wis. 314, 317; 17 N. W. 136 (1883). "There should be such an offer of delivery by one party that the other party could intelligently accept or reject it, without anything required to be done by him involving delay, labor, and expense.' " International Harvester Co. v. Hayworth, 23 S. D. 514; 122 N. W. 412 (1909), applying Rev. Civ. Code, § 1163.

2 Walker v. Davis, 65 N. H. 170; 18 At. 196 (1889); Burdick's Cases on Sales, 374.

3 Kimberly v. Patchin, 19 N. Y. 330 (1859); Hurff v. Hires, 40 N. J. L. 581 (1878); Burdick's Cases on Sales, 99.

4 Brownfield v. Johnson, 128 Pa. St. 254; 18 At. 543 (1889); Burdick's Cases on Sales, 375.

5 Lockhart v. Bonsall, 77 Pa. St. 53 (1874), (five thousand barrels of oil in bulk-cars to be pumped from cars by purchaser).

Iron Cliff Co. v. Buhl, 42 Mich. 86; 3 N. W. 269 (1879); Burdick's Cases on Sales, 378.

determinable by him alone. If it were, he would have it in his power to force upon the buyer goods without the latter's consent. Clearly the sale contract gives the seller no such right. On the other hand, it binds him "to do an act which he cannot completely perform without the concurrence of the" buyer;' and it entitles the buyer to reject the goods if they do not conform to the agreement. This right cannot be exercised unless the buyer can inspect the goods. Accordingly, in every case of contract to sell by verbal description or by sample, the seller impliedly engages that the buyer shall have a reasonable opportunity to inspect the goods, in order to discover whether they are the goods agreed upon.3 The time within which inspection is to be made, as well as the place of inspection, may be expressly agreed upon. In such cases the parties must abide by their stipulations. Whether a reasonable opportunity for inspection has been afforded may depend upon custom.5 Ordinarily, however, it is a question of fact "to be determined by the jury upon all the circumstances, including as well the situation and liability of injury to the vendor from delay, as the convenience and necessities of the vendee." 6 The circumstances may be such that no question of fact for

1 Startup v. Macdonald, 6 Man. & Gr. 593, 610 (1843).

2 Groetzinger's Sons v. Kann, 165 Pa. St. 578; 30 At. 1043 (1895); Pittsburgh C. C. & St. L. Ry., Ind.; 98 N. E. 295 (1912); Bunch v. Weil, 72 Ark. 343; 80 S. W. 583 (1904).

Lorymer v. Smith, 1 B. & C. 1 (1822); Pope v. Allis, 115 U. S. 363; 6 Sup. Ct. 69 (1885); Burdick's Cases on Sales, 305; Uniform Sales Act, Mass. L. 1908, ch. 237, § 47.

4 Potter v. Lee, 94 Mich. 140; 53 N. W. 1047 (1892). In this case the purchaser bound himself to inspect within ten days, and was not allowed to return the goods nor to claim damages after the expiration of that period.

Sanders v. Jameson, 2 C. & K. 557 (1848), (a custom of the Liverpool corn-market that inspection must be made on the day of sale); McLennan v. McDermid, 52 Mich. 468; 18 N. W. 222 (1883), (customary place of inspection was St. Ignace and not place of delivery).

Pierson v. Crooks, 115 N. Y. 539, 551; 22 N. E. 349; 12 Am. St. R. 831 (1889); Doggett v. Tatham, 116 Md. 147; 81 At. 376 (1911); goods to be shipped f. o. b. are to be inspected, and accepted or rejected at place of delivery f. o. b. Contra, Eaton v. Blackburn, 52 Ore. 300; 96 Pac. 870 (1908); Phoenix Packing Co. v. Humphrey-Ball Co., 58 Wash. 396; 108 Pac. 952 (1910).