the jury is involved; as where the goods are tendered in closed casks, or at an hour which is unquestionably seasonable, or as clearly unseasonable.3

198. Place of Delivery is generally the Place of Inspection. Although the place of inspection, in the absence of special agreement or custom, is presumably the place of delivery, yet the circumstances may show that such place would be an unreasonable one, or that the parties did not contemplate an inspection there." "The ordering of goods of a specific quality by a distant purchaser of a manufacturer or dealer, with directions to ship them by a carrier, is one of the most frequent commercial transactions. It would be a most embarrassing and inconvenient rule, more injurious even to the dealer or manufacturer than to purchasers, if delivery to the carrier was held to conclude the party giving the order from rejecting the goods on arrival, if found not to be of the quality ordered." 6

199. Reasonable Opportunity of Inspection. - While the seller is bound to afford a reasonable opportunity for inspection, he is under no duty to do more. Upon the sale of a ship which is afloat, the seller is not bound to place the vessel in a dry dock in order that the buyer can there examine her. On the other hand, if the manufacturer of a lot of bedsteads, consisting of 6,500 parts, tells the buyer that the beds must be inspected at

1 Isherwood v. Whitmore, 11 M. & W. 347 (1843). 2 Startup v. Macdonald, 6 Man. & Gr. 593 (1843).

Croninger v. Crocker, 62 N. Y. 151 (1875).

Brownlee v. Bolton, 44 Mich. 218; 6 N. W. 657 (1880), (timber to be delivered on rail of vessels to be furnished by buyer); Perkins v. Bell (1893), 1 Q. B. 193 (grain to be delivered by the grower at a designated railway station, from which point it was to be shipped by the buyer to various customers).

Grimoldby v. Wells, L. R. 10 C. P. 391, 395 (1875), (tares to be sent part way in seller's cart and then transferred into buyer's cart by latter's servant. Held, not reasonable to compel buyer to examine them at halfway of the journey).

Pierson v. Crooks, 115 N. Y. at pp. 548, 549; 22 N. E. 349 (1889), (iron ordered by New York merchants from Liverpool dealers through New York agents of latter, to be delivered free on board at Liverpool, but shipped on steamers selected by sellers, and no notice given of shipment in time to enable buyers to inspect in Liverpool).

7 Lincoln v. Gallagher, 79 Me. 189; 8 At. 883 (1887); Burdick's Cases on Sales, 380.

the factory, but adds, "if one of the beds goes together, they will all go together," the buyer's application of this test, suggested by the manufacturer and seller, will not amount to a final inspection. Upon subsequently discovering that the parts are not interchangeable, he may reject the beds or recover damages for the seller's breach of contract.1

In case the goods are perishable, the buyer is bound to make prompt inspection.2

200. Inspection may necessitate Use of Property. — In some cases a reasonable inspection of the goods necessitates such a dealing with them as would ordinarily indicate a final acceptance, as where lumber is sent in box cars, and an examination cannot be made without unloading, measuring, and piling it.3 Reasonable inspection may extend even to the destruction of a portion of the goods. If the buyer cannot determine whether an article is "the best commercial whiting," without using a portion of it, he has the right to use "so much thereof as, under all the circumstances, may become actually necessary for that purpose without liability for its value."

4

When the buyer, however, can determine the non-conformity of the goods to the contract, without consuming any of them, his use of a portion, even for the purpose of providing evidence of unfitness, is in excess of his right of inspection and will preclude him from rejecting them.5

201. Transfer of Title may precede Inspection. - While the seller's engagement to afford the buyer a reasonable opportunity for inspection is a condition precedent to the transfer of title, ordinarily, the circumstances of the case may show that it is not to have such effect." If the transaction is one of "sale

6

1 Leitch v. Gillette-Herzog Co., 64 Minn. 434; 67 N. W. 352 (1896). 2 Jones v. Bloomgarden, 143 Mich. 326; 106 N. W. 891 (1906). Holmes v. Gregg, 66 N. H. 621; 28 At. 17 (1890).

4 Whiting Co. v. White Lead Works, 58 Mich. 29, 36; 24 N. W. 881 (1885).

5 Cream City Glass Co. v. Friedlander, 84 Wis. 53; 54 N. W. 28 (1893); Noble v. Olympia Brewing Co., 64 Wash. 461; 117 Pac. 241 (1911).

Miller v. Seamen, 176 Pa. St. 291; 35 At. 134 (1896); Burdick's Cases on Sales, 381; Sempel v. Lumber Co., 142 Ia. 586, 595; 121 N. W. 23 (1909); Indiana Tie Co. v. Phelps, 124 S. W. 833 (Ky. 1910).

7 Plumb v. Hallauer & Sons Co., 145 A. D. 20; 130 N. Y. Supp. 147

or return," that is, a present sale with an option in the buyer to return the goods if upon inspection they do not conform to the contract stipulations, -the seller's engagement can operate only as a condition subsequent.1

202. Example of Sale or Return. In a recent Iowa case,2 the court was called upon to determine whether or not an express stipulation by the seller that the buyer might inspect certain liquors, after their receipt, and return them if they were not as represented, operated to prevent the transfer of title until inspection could be made. This was dealt with as "wholly a question of intention, to be arrived at from the contract and the acts and conduct of the parties." After considering the terms of the contract and the acts of the parties thereunder, the court declared: "We are satisfied from the fact that the drayman, who must be considered as plaintiffs' (buyers') agent, paid the freight on these liquors, took them from the carrier and delivered them to plaintiffs, and from the further fact that the plaintiffs credited defendants with the liquors as soon as they received the bills for them, which was in advance of the delivery of the goods, with the understanding that they were to have credit for such as might be returned, that both parties intended title to pass when the goods were delivered to the railroad company at Omaha, Neb., for transportation to Ottumwa; and that the sale was not one on trial or on approval, or if satisfactory to plaintiffs, but rather a completed sale, with an option in plaintiffs to return them if they did not meet the test plaintiffs proposed to give them."

203. Conditional Title before Inspection. There is authority for the proposition that, whenever the buyer authorizes the seller to appropriate goods to the contract, title may pass conditionally at the time of their appropriation, although the buyer has the right of inspection upon their receipt, and is entitled to reject them if they do not conform to the contract.

(1911); Gonter v. Herman Klaber & Co., 67 Wash. 84; 120 Pac. 533 (1912); Gardner v. Nor. Pac. Ry., - Minn. —; 136 N. W. 1028 (1912). 1 Boothby v. Plaisted, 51 N. H. 436 (1871); Burdick's Cases on Sales,

• Wind v. Iler & Co., 93 Ia. 316; 61 N. W. 1001; 27 L. R. A. 219 (1895).

The following extract from a recent New York decision fairly presents this view: "It is said that on the delivery of the iron on shipboard at Liverpool the title vested in the plaintiffs, and that the vesting of the title in the vendees implies an acceptance, and is inconsistent with the alleged right of inspection and rejection on its arrival in New York. There can be no doubt that on delivery to the carrier of iron corresponding with the contract the title would immediately vest in the purchasers, and the iron would thereafter be at their risk. Nor is there any doubt of the general rule that delivery of goods corresponding with the contract is a condition precedent to the vesting of the title in the vendee. But assuming that the title to the iron for some purposes vested in the plaintiffs on delivery to the steamers, it was, as between the vendors and vendees, a conditional title subject to the right of inspection and rejection for inferior quality on arrival at New York. The circumstances strongly confirm the view that the parties did not contemplate that the right of inspection should be exercised at Liverpool."

1

204. Absolute Title before Inspection. The parties may agree that title shall pass absolutely before inspection. If they do so agree, the seller's engagement for inspection cannot have the effect of a condition precedent, suspending the vesting of title in the buyer; 2 nor of a condition subsequent, warranting him in revesting title in the seller; 3 but it can operate only as a collateral agreement, enabling the buyer to ascertain what damages he has suffered "in consequence of the inferiority of the goods." 4

1 Pierson v. Crooks, 115 N. Y. 539, 548; 22 N. E. 349 (1889); cf. Alden v. Hart, 161 Mass. 576; 37 N. E. 742 (1894); Burdick's Cases on Sales, 385; Campbell on Sales (2d ed.), 516; Wadhams v. Balfour, 32 Ore. 313; 51 Pac. 642 (1898); Burdick's Cases on Sales, 684; Mette & Kanne Dis. Co. v. Lowery, 39 Mont. 124; 101 Pac. 966 (1909); Frankel v. Miller, 16 N. D. 387, 391; 113 N. W. 1067 (1907). Order for liquor was received and accepted in Minn., and the liquor delivered to purchaser f. o. b. at St. Paul; title passed in St. Paul; Eaton v. Blackburn, 52 Ore. 300, 307; 96 Pac. 870 (1908).

2 Stearns v. Grand Trunk Ry., 156 Mich. 145; 120 N. W. 572 (1909). 3 Hill Veneer Co. v. Monroe, 189 Fed. 834 (1911).

Heyworth v. Hutchinson, L. R. 2 Q. B. 447, 451 (1867); St. Anthony Lumber Co. v. Bardwell Co., 60 Minn. 199; 62 N. W. 274 (1895); Burdick's Cases on Sales, 387.

Mr. Benjamin's criticism of Heyworth v. Hutchinson is based upon a strange misconception of the case. He says it compelled the buyer "to accept the goods, although the property had not passed to him, although he had not had an opportunity of inspection before purchase, and although the goods were much inferior in quality to the warranty in the written contract.”1 But all of the judges based their opinions upon the fact that the agreement was a bargain and sale. It was assumed that the property passed by force of the contract; and the only question was whether there was anything in the writing importing a condition that the buyer might reject the goods if not about similar to samples. Their unanimous conclusion was that the writing contained "merely a warranty as distinguished from a condition."

§ 4. Warranties.

205. Many of the foregoing conditions are frequently called warranties; but the latter term is properly confined to those engagements of the seller which are collateral to the main purpose of the sale contract. It was defined by Chief Justice Shaw in these words: "A warranty is a separate, independent, collateral stipulation, on the part of the vendor, with the vendee, for which the sale is the consideration, for the existence! or truth of some fact relating to the thing sold. It is not strictly a condition, for it neither suspends nor defeats the completion of the sale, the vesting of the thing sold in the vendee, nor the right to the purchase-money in the vendor. And, notwithstanding such warranty, or any breach of it, the vendee may hold the goods, and have a remedy for his damages by action."

1 Benjamin on Sales (Bennett's ed., 1899), § 889; Fifth Eng. ed., p. 997. 2 Dorr v. Fisher, 1 Cush. (Mass.) 271, 273, 274 (1848); Burdick's Cases on Sales, 389; Fairbank Canning Co. v. Metzger, 118 N. Y. 260, 265; 23 N. E. 372 (1890); Burdick's Cases on Sales, 418. "All contracts of sale with warranty, therefore, must contain two independent stipulations: First, an agreement for the transfer of title and possession from the vendor to the vendee. Second, a further agreement that the subject of the sale has certain qualities and conditions." And see supra,¶ 139 et seq.