the article contracted for will dispense with the strict legal effect of the condition precedent. Likewise his approval, in the absence of fraud or bad faith, is conclusive on the buyer.

732. General Duty of Buyer as to Care, Use and Return.-Ordinarily where personal property is delivered upon the understanding that if it proves satisfactory or suitable to the wants of the receiver he will keep it and pay for it, but if unsatisfactory he will return the identical property, a mere bailment is created, and title does not pass until he has exercised his option, or until the fixed or a reasonable time in which to exercise it has elapsed. And for the reason that the title does not pass, any loss or damage from any cause except through negligence of the buyer rests upon the seller. If the buyer notifies the seller that the article is unsatisfactory he is not required, it seems, to make an actual return of the article unless so required by the contract but may hold it subject to the order of the seller. If, however, the contract provides for a return of the goods if not satisfactory, the buyer cannot relieve himself of liability for the price unless he returns or offers to return them, and the offer to return must be unconditional, and ordinarily the buyer has no right to retain possession as security for a claim he may have against the seller growing out of the contract.10 Where the buyer agrees to pay for the article. at the expiration of a certain time on condition that it is satisfactory the contract to pay becomes absolute at the expiration of that time, unless within a reasonable time he offers to return it and gives notice of his dissatisfaction.11 And if the buyer keeps the article, without notice of his dissatisfaction, he cannot recoup damages in an action for the price by reason of its failure to work as it ought, but is bound to pay the full price.12

733. Duty as to Trial of Article.-Where machinery is sold and guaranteed to work satisfactorily to the buyer, it is ordinarily the

5. Lynn v. Baltimore, etc., R. Co., 60 Md. 404, 45 Am. Rep. 741; Livesley v. Johnston, 45 Ore. 30, 76 Pac. 13, 106 A. S. R. 647, 65 L.R.A. 783; Barrett v. Raleigh Coal, etc., Co., 51 W. Va. 416, 41 S. E. 220, 90 A. S. R. 802. 6. Nofsinger v. Ring, 71 Mo. 149, 36 Am. Rep. 456.

7. Sturm v. Boker, 150 U. S. 312, 14 S. Ct. 99, 37 U. S. (L. ed.) 1093; Gottlieb v. Rinaldo, 78 Ark. 123, 93 S. W. 750, 6 L.R.A. (N.S.) 273.

Note: 6 L.R.A. (N.S.) 273.

8. Sturm v. Boker, 150 U. S. 312, 14 S. Ct. 99, 37 U. S. (L. ed.) 1093; Gottlieb v. Rinaldo, 78 Ark. 123, 93 S. W. 750, 6 L.R.A. (N.S.) 273 (loss

while in the hands of the carrier by whom the buyer reshipped to the seller).

Note: 6 L.R.A. (N.S.) 273.

It is otherwise when the contract is one of "sale or return," under which the title vests in the buyer, subject to a right merely to return. See supra, par. 725.

9. Note: 1 L.R.A. 646. 10. Note: 50 L.R.A. (N.S.) 809, 811. 11. Dewey v. Erie Borough, 14 Pa St. 211, 53 Am. Dec. 533.

12. Campbell Printing Press Co. v. Thorp, 36 Fed. 414, 1 L.R.A. 645. Note: 50 L.R.A. (N.S.) 813.

duty of the buyer to test the machine fairly.18 And it seems that where the contract requires the trial of the machine for a certain period of time, it is the duty of the purchaser to give the machine this trial. And ordinarily, he cannot reject it before the expiration of the entire time fixed for the trial, on the ground that it does not comply with the agreement and it is useless to proceed.15 Where a contract for the sale and installation of a heater for a dwelling house, to be satisfactory to the buyer, further provides that it shall have a fair and reasonable trial, this contemplates a trial by the householder under the supervision and attendance of the ordinary household servants and does not require that the buyer employ skilled plumbers and engineers to operate it.16 Where an article was delivered under an agreement to try it within a specified time according to directions, and to pay for it if it works according to representations, it has been held that the buyer is not required to make the test before returning the article, where, from a test of a similar article by others, it is conclusively demonstrated that the article is incapable from its construction of complying with the agreement.17

734. What Constitutes Approval by Buyer Generally.-Where the time within which the buyer is to be permitted to try or test the article and express his disapproval and give notice thereof is fixed by the contract, he must comply with such requirements; otherwise his retention of the property after the time fixed will be considered as an approval and acceptance making the sale absolute.18 And while the buyer, if no time is fixed for the rejection of the article as unsatisfactory, has a reasonable time to act,19 he is entitled to try it for a reasonable time only, and if he uses it for an unreasonable time, such use constitutes an acceptance.20 And though the contract contains no express provision for notice by the buyer of his dissatisfaction or rejection, he is required to give such notice within a reasonable time; otherwise he will be deemed to have accepted.1 Ordinarily one purchasing property on trial for a certain period of time has the full period agreed on for the trial, and in the absence

14. Buckstaff v. Russell, 151 U. 626, 14 S. Ct. 448, 38 U. S. (L. ed.) 292.

Note: 50 L.R.A. (N.S.) 810. 15. Note: 50 L.R.A.(N.S.) 810. 16. Adams Radiator, etc., Works v. Schnad r, 155 Pa. St. 394, 26 Atl. 745, 35 A. S. R. 893.

17. Note: 50 L.R.A. (N.S.) 810.

18. Buckstaff v. Russell, 151 U. S. 626, 14 S. Ct. 448, 38 U. S. (L. ed.) 292; F. O. Evans Piano Co. v. Tully, 116 Miss. 267, 76 So. 833, L.R.A. 1918B 870 and note; Dewey v. Erie, 14 Pa. St. 211, 53 Am. Dec. 533. Note: 50 L.R.A. (N.S.) 808. 19. Note: 14 Ann. Cas. 331. 20. Notes: 50 L.R.A. (N.S.) 810; 14 Ann. Cas. 331.

1. Notes: 50 L.R.A. (N.S.) 808, 810; L.R.A1918B 874.

of any stipulation on the point, he has a reasonable time after the expiration of it in which to reject the article. A requirement that the article purchased shall be returned "at once" if unsatisfactory has been held to be complied with if returned as soon as this can reasonably be done, under the circumstances. Whether, under the facts and circumstances of the case at bar, the use of property beyond the time fixed for its return was such as to constitute a waiver of the right to rescind is generally a question for the jury. It has been held that including in a mortgage by a corporation to its president, to secure him against liability upon indorsements made for its benefit, a machine which had been bought on approval to be returned if it did not prove satisfactory does not, if made before the test to determine whether it was satisfactory or not was completed, conclusively show acceptance of the machine, so as to preclude its return. Ordinarily, however, a sale or mortgage of the property by the buyer would be conclusive evidence of his acceptance of the same as satisfactory.

735. Effect of Continued Use.-After the buyer subjects the property to the specified tests or has notified the seller of his disapproval and intention not to accept the article, he must hold it as the property of the seller, and he cannot thereafter exercise rights with respect to it inconsistent with his repudiation of the sale, and at the same time rely on his right to reject, and ordinarily if he does so, he will be held to have accepted and approved the article. Thus where a buyer of an engine on approval, who tried it, and then, after notifying the seller's agent that he would not accept it, with no special exigency to make its use unavoidable, used it to finish a job, it has been held that he thereby exercised his election to retain the engine, and could not subsequently repudiate the contract, even though he had further time to try it under the contract, if he declared he did not so desire, and the subsequent use was not for trial. If, however, the continued use of the article is at the request of the seller to give it a further trial, the buyer's right to reject it as unsatisfactory is not lost.9

2. Note: 50 L.R.A. (N.S.) 809. 3. Note: 14 Ann. Cas. 331. 4. Cedar Rapids Nat. Bank v. Weber, (Ia.) 164 N. W. 233, L.R.A. 1918A 432.

5. Harrison v. Scott, 203 N. Y. 369, 96 N. E. 755, 38 L.R.A. (N.S.) 1035. 6. Note: 38 L.R.A. (N.S.) 1035. 7. Fred W. Wolf Co. v. Monarch Refrigerating Co., 252 Ill. 491, 96 N.

E. 1063, 50 L.R.A. (N.S.) 808; Fox v. Wilkinson, 133 Wis. 337, 113 N. W. 669, 14 L.R.A. (N.S.) 1107.

Notes: 14 L.R.A. (N.S.) 1107: 36 L.R.A. (N.S.) 469; 50 L.R.A. (N.S.) 812.

8. Fox v. Wilkinson, 133 Wis. 337, 113 N. W. 669, 14 L.R.A. (N.S.) 1107. 9. Notes: 14 L.R.A. (N.S.) 1108; 50 L.R.A. (N.S.) 812.

XXII. CONTRACTS FOR PAYMENT IN COMMODITIES

736. In General.-A form of contract which has frequently come before the courts is one whereby one party agrees or is given the option to pay a certain sum in a commodity or articles on which a price is set. 10 As a general rule agreements to pay a certain amount in specific articles at a fixed price are presumed to be made in favor of the debtor, and he may pay the amount of the debt in money, in lieu of the articles, which, by the terms of the contract, the creditor had agreed to receive. And if he tenders the articles on the day fixed by the agreement, he may plead it, and continue his right to pay the property instead of the money.11 The contract may, however, be so worded, though the amount to be paid is expressed, as to render the contract one for the absolute delivery of the commodity at the price fixed, the amount of the indebtedness being used simply to determine the amount of the commodity to be delivered, and as so construed will not give the debtor the right to pay the money in lieu of his obligation to deliver the property or impose on him an obligation to pay the amount specified in money in default of delivery.12 Thus it has been held that a covenant to pay a certain sum, "in good merchantable pig iron," at a certain price per ton, cannot be discharged at the option of the debtor by tendering the money in place of the iron.18 And it has been held that a contract to pay the price of land in wheat of a certain quality, at a specified price per bushel, in annual instalments of a specified amount, is equivalent to a contract for the sale of the amounts of wheat to be delivered at the times and price specified. The vendor, therefore, is entitled to the wheat at the times specified for its delivery, and the vendee has no right to pay in money, instead of wheat, the amount of the purchase price.14

737. Loss of Right to Pay in Commodities.—Where the contract is for payment in commodities at a specified time, it is not necessary for the payee to demand or request delivery, in order to place the payor in default; a tender of the specific articles must be made by the payee on the day stipulated.15 And if he makes default in the delivery of the articles, his right to make payment therein is lost and his obliga

10. Aldrich v. Albee, 1 Greenl. (Me.) 120, 10 Am. Dec. 45; Pierce v. Marple, 148 Pa. St. 69, 23 Atl. 1008, 33 A. S. R. 808.

11. Hoys v. Tuttle, 8 Ark. 124, 46 Am. Dec. 309; Pinney v. Gleason, 5 Wend. (N. Y.) 393, 21 Am. Dec. 223; Roberts v. Beatty, 2 Pen. & W. (Pa.) 63, 21 Am. Dec. 410; Smith v. Coolidge, 68 Vt. 516, 35 Atl. 432, 54 A. S. R. 902.

Note: 21 Am. Dec. 422.

12. Cole v. Ross, 9 B. Mon. (Ky.) 393, 50 Am. Dec. 517; Noonan v. Ilsley, 17 Wis. 314, 84 Am. Dec. 742; Starr v. Light, 22 Wis. 433, 99 Am. Dec. 55.

13. Cole v. Ross, 9 B. Mon. (Ky.) 393, 50 Am. Dec. 517.

14. Starr v. Light, 22 Wis. 433, 99 Am. Dec. 55.

15. Roberts v. Beatty, 2 Penn. & W. (Pa.) 63, 21 Am. Dec. 410.

tion becomes solvable only as a money obligation.16 The contract to pay a certain amount in commodities being entire the payor has no right to require the payee to accept a part of the articles and the balance in money.17 A plea of tender of specific articles must state that they were kept ready until the uttermost convenient time of the day of payment.18

738. Damages Recoverable.-The authorities are not in accord as to the amount recoverable under contracts to pay a certain amount in articles at a designated price. The better view seems to be that upon the debtor's default the designation of the amount of the indebtedness may be recovered by the creditor, though the market price of the articles which the debtor could have delivered in satisfaction was less than the price placed thereon in the contract; the contract in such a case is considered one to pay the amount expressed with an option to the debtor to discharge it by delivery of the articles at the price fixed which is lost and of no avail to him whatever if he fails to deliver the articles, or the amount stipulated to be paid is considered as recoverable as liquidated damages.19 And likewise it has been held that though the articles were worth more at the time of delivery than the price fixed in the contract, the amount of the creditor's recovery is still limited to the amount of the indebtedness stated.20 On the other hand the view is taken in some cases that when an obligation such as a note for a certain amount is payable

wards v. McKee, 1 Mo. 123, 13 Am. Dec. 474.

Notes: 21 Am. Dec. 231, 425; 55 Am. Dec. 776.

17. Roberts v. Beatty, 2 Pen. &. W. (Pa.) 63, 21 Am. Dec. 410. 18. Aldrich V. Albee, 1 Greenl. (Me.) 120, 10 Am. Dec. 45.

19. Cummings v. Dudley, 60 Cal. 383, 44 Am. Rep. 58; Brooks v. Hubbard, 3 Conn. 58, 8 Am. Dec. 154; McKinnie v. Lane, 230 Ill. 544, 82 N. E. 878, 120 A. S. R. 338; Smith v. Coolidge, 68 Vt. 516, 35 Atl. 432, 54 A. S. R. 902.

16. McGillin v. Bennett, 132 U. S. 445, 10 S. Ct. 123, 33 U. S. (L. ed.) 422; Russell v. McCormick, 45 Ala. 587, 6 Am. Rep. 707; Hoys v. Tuttle, 8 Ark. 124, 46 Am. Dec. 309; Cummings v. Dudley, 60 Cal. 383, 44 Am. Rep. 58; Vanhooser v. Logan, 3 Scam. (Ill.) 389, 38 Am. Dec. 90; McKinnie v. Lane, 230 Ill. 544, 82 N. E. 878, 120 A. S. R. 338; Wyman v. Winslow, 11 Me. 398, 26 Am. Dec. 542; Bailey v. Simonds, 6 N. H. 159, 25 Am. Dec. 454; Smith v. Smith, 2 Johns. (N. Y.) 235, 3 Am. Dec. 410; Newman v. McGregor, 5 Ohio 349, 24 Am. Dec. 293; Roberts v. Beatty, 2 20. Pinney v. Gleason, 5 Wend. (N. Pen. & W. (Pa.) 63, 21 Am. Dec. 410; Y.) 393, 21 Am. Dec. 223, holding that Choice v. Moseley, 1 Bailey L. (S. C.) the measure of damages for the breach 136, 19 Am. Dec. 661; Dunham v. of a contract "to pay seventy-nine Strother, 1 Tex. 89, 46 Am. Dec. 97; dollars and fifty cents in salt at fourBaker v. Todd, 6 Tex. 273, 55 Am. teen shillings per barrel," is the sum Dec. 775; Deel v. Berry, 21 Tex. 463, agreed to be paid and not the value of 73 Am. Dec. 236; Wainwright v. the salt, on the day specified for payStraw, 15 Vt. 215, 40 Am. Dec. 675; ment, though the salt was worth more Smith v. Coolidge, 68 Vt. 516, 35 Atl. at that time than the price so fixed. 432, 54 A. S. R. 902. See also Ed