the jury on that question. We are of opinion, too, that on the whole case there was sufficient evidence to take the case to the jury on the question of negligence, and that it was for the jury to say whether plaintiff's prima facie case had been negatived or overcome by the testimony introduced on behalf of the defendant. The court erred in requiring plaintiff to elect as between implied warranty and negligence. While it is true that no particular act of negligence is shown by plaintiff, in the very nature of the case that could not be done. It is also true that, according to the defendant's evidence, its plant and method of manufacture is good, probably as good as any, still, it does appear that the method was not always adhered to by defendant's employés. We think, from all the circumstances shown by the evidence, the jury could have properly inferred and found that the can of beans in question, and perhaps a batch, as one of defendant's witnesses calls it, were defective. * * * If we call it a duty to use care in the preparation and manufacture, then in that sense a breach of that duty would constitute negligence. Or it may be treated as a representation or a warranty that, because of the sacredness of human life, food products so put out are wholesome. In either event, a failure in this respect is a breach of duty and a breach of warranty, and the plaintiff, suing, may rely on either or both, and when he makes a prima facie case he is entitled to go to the jury on the question as to whether defendant's evidence negatives plaintiff's prima facie case. * * * For an interesting discussion of this subject and the citation of many cases, see Iowa Law Bulletin, vol. 5, p. 86. * * The question of caveat emptor has been referred to in some of the cases; in the earlier cases, and perhaps followed by some of the later ones, when a person went to market with a market basket on his arm, and could examine the food, the doctrine was held to apply, in the absence of a warranty. But the business of canning food products of almost every kind has increased enormously in recent years. The purchaser has no opportunity of examination, until opened for use. and, under the circumstances of this case, we think the doctrine does not apply. It is possible that when Mrs. Davis purchased this can, had it had the appearance of being old, and the label soiled, or the ends swollen, or something of that kind, the doctrine might apply. For the reasons given, the judgment is reversed and remanded for a new trial. Section 1. CHAPTER VII RIGHTS AND REMEDIES OF THE BUYER Introduction. 2. Buyer's Right to Examine the Goods. 3. Nature and Consequences of an Acceptance of the Goods. 4. Buyer under No Duty to Return Goods Not Accepted Because of NonCompliance with the Contract. 5. Remedies of the Buyer for Breach of Warranty. 6. Buyer's Right to Recover Damages for Breach of the Contract to Sell. Right of the Buyer to Sue the Seller for Conversion of the Goods. 7. 8. Buyer's Right of Specific Performance. SECTION 1.-INTRODUCTION In Chapter V there was discussed at some length the special rights and remedies of an unpaid seller. It was there noted that, in addition to the ordinary remedies for breach of contract, the unpaid seller had three special rights against the goods. In one special case the seller is allowed to recover the price, even though title has not passed. In the present chapter we enter upon a similar discussion of the special remedies of the buyer. The remedies of the buyer for breach of warranty are of particular importance here. Also it will be found that the buyer may, in a special case, recover possession of the goods, even though title has not passed to him, a remedy which is similar in nature to that special case in which is accorded to the seller the right to recover the price, although title has not passed. SECTION 2.-BUYER'S RIGHT TO EXAMINE THE GOODS Sales Act, Section 47. (2) Unless otherwise agreed, where the seller tenders delivery of the goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract. (3) Where goods are delivered to a carrier by the seller, in accordance with an order from or agreement with the buyer, upon the terms that the goods shall not be delivered by the carrier to the buyer until he has paid the price, whether such terms are indicated by marking the goods with the words "collect on delivery" or otherwise, the buyer is not entitled to examine the goods before payment of the price in the absence of agreement permitting such examination. Subsection 2 imposes upon the seller of goods an obligation to afford the buyer a reasonable opportunity of examining the goods, and gives to the buyer the correlative right to examine the goods, unless the parties have, by express or implied stipulation, de stroyed such right to examine the goods. Subsection 3 presents one situation where it is presumed that the parties have waived the buyer's right of examination. Of what value is this right to the buyer? Where is the examination to be made? In studying the nature of the buyer's right of examination, or of inspection as it is sometimes called, it is desirable to keep two different situations in mind. The general problem is to discover the effect upon the rights and liabilities of the parties as they are affected by the right of examination. These two situations are: (1) A case where the goods do in fact comply with the terms of the contract; and (2) a case where the goods in fact do not comply with the contract. The buyer's right of examination, obviously, exists in each case, for the very purpose of the right is to enable the buyer to learn whether the goods do conform to the contract. Let us take as an illustration the case of a shipment of a carload of goods sent under a straight bill of lading to the buyer. Let us suppose, further, that these goods do in fact comply with the terms of the contract. The buyer has a right of examination. Waiving, for the time being, the question as to where the examination should take place, whether at the point of origin or of destination, our question is: Of what value to the buyer is his right of examination? The law is that, if the buyer has not yet paid for the goods, he is under no duty to pay for them until he has had a reasonable opportunity of examining them; that is, the buyer will not break his contract by refusing payment until he has had this opportunity. Stating it in another way, the seller cannot sue the buyer for failure to pay until this opportunity has been given the buyer. The act of affording a reasonable opportunity to examine the goods is a condition precedent to the buyer's duty to pay. Notice that the giving of such an opportunity is not a condition precedent to the passing of title. From a rule already discussed we know title passed on delivery to the carrier. The buyer owns the goods; the risk of loss has passed to him. He simply is not required to pay for them until he has had an opportunity of examining them, assuming that he has not waived this right. Assume, now, that an opportunity is given the buyer to examine, but that he does not avail himself of it. This is a very common case, not so common in carload shipments, but certainly quite common where the goods are packed in boxes or otherwise concealed. The normal thing done by the buyer is to take them from the freight office to his place of business and leave them there until he is ready to use or display them. Having had an opportunity to examine, it is evident that, just as soon as there is a failure to take advantage of the opportunity, at that moment the buyer is under a duty to pay for the goods. The contract, of course, may provide otherwise as to time of payment. Taking up the second situation, where we are assuming that, the goods, at the time of delivery to the carrier, were not in conformity with the contract. This is the more important case. We have already noted that the delivery to the carrier, or any other act of unconditional appropriation of goods not in accordance with the contract, does not pass title nor risk of loss to the buyer. Therefore, in this case, the giving of an opportunity to examine the goods is not only a condition precedent to the buyer's obligation to pay the price, the contract not providing otherwise, but it is also a condition precedent to the passing of title to the buyer. If he examines and accepts, title passes to him, and his duty to pay then arises. If he examines and rejects, that act terminates his duties under the contract, and perfects his right to sue the seller for his breach. The scope of the buyer's duty to care for rejected goods will be noted in section 4. If the buyer does not examine, having the opportunity of examining, but receives the goods, perhaps taking them from the carrier and storing them in his own. place of business, title to the goods passes at that moment, carrying with it the risk of loss, in spite of the fact that they are not in compliance with the terms of the contract. It is only fair to the seller to hold that, even if he has been guilty of a breach of contract, and the buyer has taken the goods to his own establishment, and then retained them for a time without examination, the title and risk of loss is in the buyer. But the buyer will, upon opening up the boxes, discover that the goods are not what he ordered. What are his rights? Has he lost everything by failing to examine when he first had the opportunity? No; because he has not yet accepted the goods. The buyer may then reject them. The act of rejection has the effect of casting back title and risk of loss to the seller. The buyer's right to so reject is founded on a condition subsequent, very similar to the case where the buyer holds goods under a contract "on sale or return." The above comment explains in general the nature of the right of examination; but this right does not always exist, because the parties have contracted it away. This may be done in various ways, but the situation presented, described in subsection 3, is of outstanding importance here. It is illustrated in the next case. The dissenting opinion in this case was inserted because it contained a more complete explanation of the facts and of the general principle of law involved. The majority and dissenting opinions. do not differ in their explanation of the rule. It will be noticed that they differed only as to whether the contract called for shipment in the manner adopted; i. e., the majority affirming that "there was no agreement that the shipment should be made 'collect on delivery,'" while the dissenting opinion states that "it was the agreement of the parties, as evidenced by the written contract, that the delivery should be by carrier," etc., and that "the agreement was a cash sale." B.& B.BUS.LAW-75 IMPERIAL PRODUCTS CO., Inc., v. CAPITOL CHEMICAL CO. (Supreme Court of New York, Appellate Division, 1919. 187 App. Div. 599, 176 N. Y. Supp. 49.) Action by the Imperial Products Company, Incorporated, against the Capitol Chemical Company. From a determination of the Appellate Term, reversing a judgment of the City Court, plaintiff appeals. PAGE, J. Four conditions must exist to bring a case within subdivision 3 of section 47 of the Sales Act: (1) Goods must be delivered to a carrier, (2) with instructions that the carrier is not to deliver the goods to the buyer until paid for; (3) this must have been done pursuant to an agreement between the buyer and seller; (4) such an arrangement may be indicated by the marking of the goods "collect on delivery" or otherwise. In my opinion, this subdivision does not apply to every shipment by a carrier, but only to such shipments when the terms of the contract of sale provide that the carrier shall collect on delivery. The controlling element is the agreement of the parties, and not the method of shipment by the seller. * * In this case there was no agreement that the shipment should be made "collect on delivery," nor was there any agreement that the buyer would pay the purchase price by sight draft to be attached to the bill of lading. No terms of payment were specified in the agreement between the parties. Under such a contract, delivery and payment are concurrent obligations. * This is very different from payment of the purchase price by sight draft with bill of lading attached. In the first, the buyer has the right of inspection to ascertain whether the goods are in conformity with the contract, when the seller tenders delivery, before he is required to accept and pay for the goods. In the latter, payment is a condition precedent to delivery, and hence inconsistent with the right of inspection. * ** * Inasmuch as there was no provision in the agreement between the parties inconsistent with the right of inspection before acceptance and payment, the seller could not deprive the buyer of that right by adopting a method of collection not provided in the agreement. * * * In my opinion the judgment of the City Court was right, and the determination of the Appellate Term should be reversed. * DOWLING, J. (dissenting). This action was brought to recover damages for the breach of a contract whereby plaintiff agreed to purchase and accept from the defendant one car, standard quality, white napthalene flakes, in barrels or in paper-lined boxes, at 8 cents per pound, f. o. b. West Elizabeth, N. J., prompt shipments from defendant's plant at Birmingham, Ala. The contract is in writing and is not disputed. The question involved in this appeal is whether the purchaser, the plaintiff, had the right to inspect the goods shipped it by the defendant pursuant to this agreement of sale. The bill of lading issued by the Pennsylvania Railroad Company for the goods in question, covering the car Rutland filled with napthalene and routed to the plaintiff at West Elizabeth, N. J., the invoice for said goods covering said carload, aggregating 33,127 pounds, at 8 cents a pound, $2,650.16, and the sight draft on plaintiff for such sum of $2,650.16, were all sent to the Chase National Bank for presentation and collection, and were regularly presented and demand for the payment of the draft made on plaintiff by the bank. There is no dispute as to these facts, and upon the trial plaintiff's counsel admitted |