that a tender of the goods had been made. Plaintiff, however, refused to take up the draft unless an opportunity was given it to inspect the goods. The plaintiff's counsel asked the court to charge the jury that, as a matter of law, the plaintiff had a right to inspect the merchandise before delivery. The court charged that plaintiff had the right to ask for a certificate for the inspection of the merchandise before delivery, to which exception was duly taken. The sole question for determination is whether, under the contract between the parties for the purchase and sale of these goods, the purchaser had a right of inspection before paying therefor.

No terms of payment were specified in the agreement between the parties; therefore the sale was a cash sale, where payment for goods must be made upon delivery. The shipment was by carrier, as the agreement contemplated, and the payment was to be of a sight draft against the bill of lading and invoice, which was the equivalent of cash on delivery. This case comes within subdivision 3, section 47, of the Sales Act. * * *

It was the agreement of the parties, as evidenced by the written. contract, that the delivery should be by carrier. The law treats this sale under the agreement in question as one for cash, where the goods are not to be delivered by the carrier to the buyer until he has paid the drafts, and these terms were indicated by the fact that the buyer was to meet the sight draft before it became entitled to the invoice and bill of lading, which were its sole authority to take possession of the goods. There was no special agreement permitting an examination before acceptance. Under these conditions the provisions of the subdivision referred to are literally and completely applicable to this case, and the plaintiff had no right to an inspection of the goods and the tender therefore was good. In Williston on Sales, p. 840, the rule is recognized that sending goods forward with a draft attached to a bill of lading is the equivalent of sending them forward C. O. D., and both involve the loss of the buyer's right of inspection. No great hardship is worked by the rule laid down by the statute in question, as it is always competent for the parties to provide for an inspection by special agree

ment.

It follows, therefore, that the charge of the learned trial court was incorrect, and that, plaintiff not having the right of inspection which it claimed, the tender made by defendant was effective, and the determination of the Appellate Term, reversing the judgment in favor of the plaintiff, was correct. *

CLARKE, P. J., concurs.

At what point is the buyer entitled to examine the goods? Subsection 2 states that the buyer is to afford the seller a reasonable opportunity of examining the goods "when the seller tenders delivery of the goods to the buyer." But when does the seller "tender delivery"? In the case of shipment by carrier, section 46 of the Sales Act provides that "delivery of the goods to a carrier is deemed to be a delivery of the goods to the buyer unless a contrary intent appears." The duty to examine the goods at the seller's place of business, or at the office of the carrier located there, would be a right of little value to the buyer.

*

* *

Therefore, in the very circumstances of the case, delivery to a carrier, for purposes of affording an opportunity to the buyer to examine the goods, is not a delivery to the buyer, as the word "delivery" is used in section 47. The general presumption stated in section 46 does not govern here, because a contrary intent does appear. The next case discusses this rule, and also points out that the parties may expressly or impliedly designate any place as the place for making an examination.

EATON v. BLACKBURN et al.

(Supreme Court of Oregon, 1908. 52 Or. 300, 96 Pac. 870, 20 L. R. A. [N. S.] 53, 132 Am. St. Rep. 705, 16 Ann. Cas. 1198.)

Action by A. E. Eaton against Edward Blackburn and another, partners as Blackburn & Breck. From a judgment for defendants, plaintiff appeals.

This is an action to recover the purchase price of two car loads of hay. The defense is that the hay, which plaintiff agreed to sell and deliver to defendants, was to be "good, number one, merchantable hay," and that furnished was not of this quality, for which reason it was rejected. The defendants are commission merchants, residing and doing business in Baker City. Plaintiff resides in Union county, some miles distant from Baker. In March, 1906, he contracted and agreed to sell to defendants five car loads of hay, for use in their business, at $11.50 per ton, f. o. b. cars, Nodine Spur, Union county. The contract was made at Baker City, and defendants were to pay the freight from place of shipment to that point, but nothing was said about the time or place of payment, or the inspection or acceptance of the hay. Shortly after making the contract, plaintiff loaded two cars with hay at Nodine Spur, and the same were carried by the railroad company to Baker, reaching there Sunday morning, March 25th. On the morning of the 27th, in company with Abercrombie-a prospective purchaserMr. Breck, one of defendants, opened the cars, in which the hay had been shipped, and examined it, but Abercrombie was unwilling to purchase. In the afternoon of the same day they made a further and more careful examination, and Breck, claiming that the hay was not of the kind and quality contracted for, refused to accept it, and so notified plaintiff and the railroad company on the following morning.

At the time of the trial it was contended by plaintiff that, under the contract between him and defendants, it was the duty of defendants to inspect and accept or reject the hay at Nodine Spur, where it was to be loaded on the cars; and, if they neglected to do so, they were bound to receive such hay as was actually shipped, and rely upon a claim of damages for breach of contract, if it was of inferior kind and quality, but, if this was not so, defendants' conduct, after the hay reached Baker City, was such as to amount, in law, to an acceptance thereof. The court instructed the jury that if the hay, delivered on the cars by plaintiff at Nodine Spur, was substantially the kind and quality called for by the contract, it would amount to a full and complete performance, and enable him to recover the contract price, whether the hay was subsequently accepted by defendants or not; and, if the hay was different or inferior to that which plaintiff agreed to sell, not

withstanding which the defendants accepted it, or did something amounting to an acceptance, they could not thereafter repudiate their liability by returning or tendering a return of the hay, but that defendants had a reasonable time in which to inspect the hay after it reached Baker City, and if it was, in fact, of an inferior quality, and not according to the contract, they could reject it, and refuse to accept or pay for it, and if they did so, plaintiff could not recover in this action.

BEAN, C. J. The principal point relied upon by plaintiff for a reversal of the judgment is the ruling of the court that, under the contract for the sale of hay in question, defendants had a right to inspect it after it reached Baker City, and, if it did not conform to the contract, to refuse to accept or pay for it. The argument is that the place of inspection and acceptance or rejection was at Nodine Spur, where the hay was to be delivered by the plaintiff, f. o. b. cars; and, if defendants neglected to exercise the right of inspection at that time and place, they were liable for the value of the hay so delivered. But we do not so find the law. No place or time of payment or of inspection or acceptance was stipulated in the contract. All parties concur in this point. The contract was made between plaintiff and defendant Breck. These gentlemen both say that Breck met plaintiff at the depot at Baker City, and inquired of him if he had any hay for sale, and that he (plaintiff) said he had; that the price was $11.50. per ton, f. o. b. cars at Nodine Spur, and that Breck said he would take five car loads at that price, and under the conditions named. * *

*

The payment, therefore, became due and payable on a complete delivery, and there could be no such delivery without an opportunity for inspection. Under an executory contract for the future sale and delivery of goods of a specified quality, the quality is a part of the description, and the seller is bound to furnish goods actually complying with such description. If he tenders articles of inferior quality, the vendee is not bound to accept them; and, unless he does so, he is not liable therefor. This necessarily gives to the vendee the right, and imposes upon him the duty, of inspection, and he must therefore be given an opportunity to make such inspection before becoming liable for the purchase price, unless the contract otherwise provides; and where articles are to be delivered to a common carrier by the vendor, to be forwarded to the vendee at a distant point, and no provision is made for inspection and acceptance before or at the time of shipment, the vendee is entitled, under the law, to a reasonable time, after the goods arrive at their destination, in which to exercise the right of inspection, and to accept or reject them, if they do not comply with the contract.

* * *

In Pierson v. Crooks, 115 N. Y. 539, 22 N. E. 349, 12 Am. St. Rep. 831, the court said: "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 rulemore injurious even to the dealer or manufacturer than to the 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." * *

*

We are of the opinion, therefore, that no error was committed by the court below in its ruling on this phase of the case. In Samuel M. Lawder & Sons Co. v. Albert Mackie Grocery Co., 97 Md. 1, 54

Atl. 634, 62 L. R. A. 795, cited by plaintiff, the contract required payment to be made for the goods at the place of shipment, which the court held was necessarily inconsistent with a right of inspection at another place. But here, as we have seen, no time or place of payment was specified, and therefore it did not become due until the goods were delivered.

* *

*

It is also insisted that defendants waived the right to reject the hay for defective quality, by their action and conduct in relation thereto after it reached Baker City. But this question was for the jury, and, we think, was fairly submitted to them. The defendants were not precluded from rejecting the hay by merely receiving it. They still had a reasonable time in which to inspect and reject it, if not according to the contract. Nor did their offer. to sell and dispose of the hay, before they had examined it, amount to an acceptance. This was before they ascertained that it was of an inferior quality, and was on the assumption that plaintiff had complied with his contract, and shipped hay of the kind and quality agreed upon. It was therefore not conclusive in law of an intent to accept the hay, in performance of the contract.

* * *

Finding no error in the record, the judgment is affirmed.

SECTION 3.-NATURE AND CONSEQUENCES OF AN ACCEPTANCE OF THE GOODS

There are two principal questions here raised: (1) What constitutes an acceptance? (2) What is the legal effect, especially upon the rights and obligations of the buyer, of an acceptance?

In answer to the first question, What constitutes an acceptance? the Sales Act makes two provisions. Section 47, subsection 1, provides:

Where goods are delivered to the buyer, which he has not previously examined, he is not deemed to have accepted them unless and until he has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract.

The effect of this section is that an act which under some circumstances might be deemed an acceptance under the definition prescribed in Section 48, next to be noticed, will not be construed as an acceptance unless the buyer has had a reasonable opportunity of examining the goods. This subsection in a sense, therefore, recognizes an exception to Section 48. It is to be noticed that it is the reasonable opportunity of examining the goods, not an actual examination which section declares must occur before the buyer may be deemed to have accepted. Our discussion, in the preceding section, of the nature and legal effect of the buyer's examination and of his failure to examine, makes it unnecessary to discuss this subsection further, though its importance should not be overlooked.

In direct answer to the first question, what constitutes an acceptance, the Sales Act, Section 48, provides:

The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him, and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after the lapse of reasonable time, he retains the goods without intimating to the seller that he has rejected them.

The question raised is essentially one of fact. It is to be noticed that two very different types of conduct may be deemed an acceptance: (1) An affirmative. act, done intentionally or unintentionally, which is substantial evidence of an assertion of ownership in the goods, is an acceptance. This is well illustrated in the next case. (2) A negative act-i. e., a failure to reject when continued an unreasonable time-is construed as an acceptance. This rule is another manifestation of a very broad doctrine of the law, that a person who fails to exercise a legal right promptly will, in one way or another, be penalized by his failure to act. Generally the right is taken from him. Statutes of limitation furnish an important and very common illustration of this broad doctrine.

WHITE v. SCHWEITZER et al.

(Court of Appeals of New York, 1917. 221 N. Y. 461, 117 N. E. 941.) Action by William E. White against Nathan Schweitzer and others. From a judgment for defendants, plaintiff appeals.

MCLAUGHLIN, J. The action was brought to recover the purchase price of a carload of turkeys shipped by plaintiff's assignor, the Keystone Commercial Company, from Maysville, Ky., to the defendants in New York City. They were shipped on November 17, and arrived November 23, 1908. There was a dispute between the parties as to the terms of sale; that is, whether the turkeys were to be "dry-picked" or "scalded." Those shipped were scalded, and the verdict has settled the disputed question in favor of the defendants. When the car arrived in which the shipment was made, the turkeys were examined by defendants, and it was then discovered they were scalded, instead of dry-picked, and also that they were in bad condition. About half past 7 o'clock in the morning of that day the defendants wired plaintiff's assignor at Maysville: "Your car arrived scalded, instead of dry-picked. Stock sticky and cannot use it. Wire instructions."

About two hours later on the same day, not having received an answer to the first telegram, they sent another, saying: "Having railroad inspector examine car. Will put in claim for you. Have turned car over to house that can sell such stuff."

Both telegrams were delivered to plaintiff's assignor at the same. time, and neither of them was answered. At the time the second telegram was sent defendants delivered the turkeys to commission merchants for sale, and the same were on that day sold for $729.69, which sum was subsequently tendered to the plaintiff's assignor, and by it refused. At the time the turkeys were delivered to the commission merchants, one of the defendants wrote plaintiff's assignor, confirming the telegrams, and saying, among other things: "I do not know just how I will make out with the sale of these goods, but in the event of any deficiency I will expect you to make good."