* * * * The principal question presented upon the appeal is whether the trial court erred in charging the jury, to which an exception was taken, that there was no evidence upon which it could find that the defendants accepted the turkeys. I am of the opinion the exception was well taken. * * * It is not at all times easy to determine whether a purchaser's retention, sale, or disposition of property constitutes an acceptance, but as a general rule it must be determined as a question of fact. * * * It may be, and usually is, indicated by exercising acts of ownership; e. g., where one resells the goods, as such action would be improper except on the assumption that the buyer had acquired title. That necessarily indicates an assent on the part of the buyer to become the owner. If the article purchased is not in accordance with the contract, then the purchaser must, upon discovering that fact, do nothing inconsistent with the vendor's ownership. * So it has been held that an acceptance is made out by action of the vendee in insuring the goods or offering to mortgage them (Georgia v. Augusta, 74 Ga. 497), or by loaning them (Hensen v. Beebe, 111 Iowa, 534, 82 N. W. 942), or by directing an agent to sell them (Brown v. Nelson, 66 Vt. 660, 30 Atl. 94), or, while disclaiming a purchase, permitting a third person to select and retain a portion of the goods upon his promise to account to the seller for them (Bartholomae v. Paull, 18 W. Va. 771). Mere complaint by the vendee that the goods do not come up to the contract does not amount to a rejection. Something more is required. If the goods received do not conform to the contract as to quality or kind, the purchaser must, as, a general rule, within a reasonable time after such facts have been ascertained, return or offer to return them. Mason v. Smith, 130 N. Y. 474, 29 N. E. 749. In case the goods are in such condition that they must be speedily disposed of, or else there will be a total loss, then there is an exception to the general rule which permits the purchaser to dispose of them. This right is implied from the necessity of the case and to make the loss as small as possible. But the exception only applies where the seller cannot be communicated with and instructions from him quickly obtained. Applying the rule laid down in the authorities cited to the evidence adduced at the trial, it at once becomes apparent that the question of acceptance was at least one of fact. It might well be doubted whether the uncontradicted facts did not show as matter of law an acceptance. *** That question, however, is not presented on the appeal, and we do not pass upon it. The defendants ascertained, about 7 o'clock on the morning of the 23d, when the goods were received, that the quality did not correspond to what they had purchased. They communicated that fact by a telegram to the seller, but did not state that they refused to receive or offer to return them; on the contrary, without waiting until an answer to the telegram could be received from the seller (at most three or four hours), they proceeded to treat the goods as their own by delivering them to commission merchants for sale, and so informed the seller. Respondents suggest that the seller did not answer either telegram. There was no necessity for its doing so. Both telegrams were received at the same time, and the second was to the effect that the goods had then been disposed of. For the reasons stated, it follows that the court also erred in instructing the jury they must find a verdict for the defendants if the contract were for dry-picked turkeys. Such instruction also withdrew from the jury the question of an acceptance. It follows that the judgment appealed from should be reversed, and a new trial ordered. SECTION 4.-BUYER UNDER NO DUTY TO RETURN GOODS NOT ACCEPTED BECAUSE OF NONCOMPLIANCE WITH THE CONTRACT Sales Act, Section 50. Unless otherwise agreed, where goods are delivered to the buyer, and he refuses to accept them, having the right so to do, he is not bound to return them to the seller, but it is sufficient if he notifies the seller that he refuses to accept them. This section, in connection with other principles of law produces these effects: (1) The failure of the buyer to return the goods which do not comply with the contract, after notice to the buyer of his rejection, cannot be construed as an acceptance; (2) nor does such failure constitute a breach of contract. (3) The buyer does owe the same duty which any gratuitous bailee owes to the bailor; that is, the buyer must use a certain degree of care over the goods. (4) In some cases the buyer could recover from the seller the damages to which he was put in caring for the property. (5) In some cases, the buyer would have the legal right to sell the goods for the seller's account, the proceeds being thereafter held in trust for the seller. This situation would arise where the goods were of perishable nature, or in any other case where from a business standpoint a sale would be for the best interests of the seller. Some phases of the application of the general principle here involved are presented in the following case. RHEINSTROM et al. v. STEINER et al. (Supreme Court of Ohio, 1904. 69 Ohio St. 452, 69 N. E. 745, Action by Wm. Steiner Sons & Co. against Rheinstrom Bros. Judgment for plaintiffs, and defendants bring error. * * The defendants in error brought action against plaintiffs in error, in the court of a justice of the peace of Hamilton county, to recover $247.50, the agreed price of certain labels claimed to have been sold and delivered to Abraham and Isaac Rheinstrom at their request. SPEAR, J. * Did the trial court apply the wrong rule of law to the evidence respecting the acceptance and retention of the goods? Without question, the burden was upon the defendants in error to establish acceptance. To determine this with fairness to them, it is proper to recite the evidence adduced by them to support that contention-not that the evidence is to be weighed, but, taken all together, does the evidence tend to show such acceptance, or does it show the contrary? On the day the goods were received by defendants below, they acknowledged receipt, under date of January 31, 1900, by the following letter, viz.: "Dear Sirs: We received to-day the shipment of Jed Clayton labels, but regret to find that the work is not properly carried out. Please return to us the original sketch and we will point out to you in detail the defects. Yours truly, Rheinstrom Bros." To this the plaintiff below responded as follows: "Gentlemen. We beg to acknowledge receipt of your favor of the 31st ult. in regards to 'Jed Clayton' labels, that same have reached you, but that the work is not properly carried out. We are again very sorry to hear your complaint, and herein enclose the sketch which was submitted to you, with one of the labels, and no doubt our Mr. Steiner will be in your city by the time these few lines reach you, and you can explain matters to him personally. We remain yours very truly, Wm. Steiner Sons & Co." Some time after the above date, Mr. Isadore Steiner, one of the plaintiffs below, called at the office of Rheinstrom Bros.; and his account of the conversation then had is, in substance, that "Mr. Rheinstrom then told me that he received our labels, but will not use them. I asked him why, and he said they were too far away in color from his original label. I pleaded with him, saying, "The labels are no earthly good to me.' He said he couldn't help that. "The best thing you can do is to put them in the fire and burn them up while you wait here.' I said: You cannot burn them. They are my property until they are paid for.' Then I tried to get him to accept them. He said he would not accept them labels for any price-not for ten cents a thousand. I put on my hat and coat and walked out." There is no other evidence by plaintiffs below bearing on the question of acceptance than the foregoing, and no evidence at all of use by defendants below of any of the labels. Mr. Abraham Rheinstrom testified, in substance, that the labels were defective in drawing, color, and workmanship. "We could not use them at any price. We never accepted these labels, but wrote immediately rejecting them. * * * * * * " The burden was upon plaintiffs below to prove a compliance with their contract. * * * Their own evidence shows conclusively that the buyers did not accept, unless a failure to manually return the rejected goods is, in law an acceptance. Is it? From the standpoint of ordinary fairness, how is it? The buyers had ordered labels of a specified kind. The sellers had delivered labels of a different kind, not conforming to the agreement, of which facts the sellers were at once, by letter, fully apprised, to which they responded that, by the time their letter should reach the buyers, one of their firm would call, and matters could be explained. He did call, and was distinctly notified that the labels were wholly useless to the buyers, and as distinctly informed that they were rejected. On what principle of commercial dealing could they ask the buyers to take further trouble in the matter, at the peril of being compelled to pay for a wholly useless article, and one which they had not purchased? We can conceive of no rule of business comity which would justify such a claim. If maintainable at all, it must be by force of some rigid rule of law. Without doubt, the rule is well settled that the buyer's retention of the goods beyond a reasonable time for examination and communication with the seller, standing alone, will be regarded as warranting the conclusion that he has accepted, and thus become liable, especially if the delay has worked prejudice to the seller. But we find no case, either among those cited or elsewhere, analogous to the case at bar on its facts, and none in which the mere failure to make manual return of the goods after a timely and explicit rejection of them, and where it appears that no prejudice to the seller has been caused by the delay, is held to make the buyer liable under the contract. On the contrary, there is abundant authority for the proposition that, unless otherwise agreed, where goods are delivered to the buyer, and he refuses to accept them, having the right so to do, he is not bound to return them to the seller, but it is sufficient if he informs the seller that he refuses to accept them. * * * True, it does not appear that it was stated to him in words that the goods were held subject to his order, but any intelligent business man could not fail to draw the conclusion that such was the fact, and his own declarations show that he regarded the labels as still the property of his firm. And such, indeed, was the law of the situation; the rule being that where there is a contract for sale of specific goods, and the seller is bound to do something to put them in a deliverable state, the property does not pass until that is done, and the buyer has notice. * * * To have shipped the goods to the Steiners, without direct orders to do so, would have made the Rheinstrom Bros. liable, in the first instance, for drayage and freight; and this burden the Steiners had no right, either in morals or in law, to place upon them. * * * We are of opinion that the court of common pleas applied the correct rule of law to the evidence on the question of acceptance and retention of the goods and that the reversal of its judgment by the circuit court was erroneous. Its judgment will therefore be reversed, and that of the common pleas affirmed. SECTION 5.-REMEDIES OF THE BUYER FOR BREACH OF WARRANTY Assuming that there has been a breach either of an express or of an implied warranty, what are the remedies of the buyer? May he refuse to take, or must he take them and content himself with a deduction from the purchase price which measures the extent of his loss? The law confers upon the buyer, two remedies: A right to refuse the goods and thus to destroy his obligation to pay the price, and also the right, if the buyer chooses to accept the goods, to take the goods at a reduced price. From the legal standpoint it is necessary to regard each of these two remedies as further divided into subordinate groups. It is commonly said that the buyer has four remedies for breach of warranty. The four remedies are provided for in the Sales Act, Section 69: (1) Where there is a breach of warranty by the seller, the buyer may, at his election (c) refuse to accept the goods, if the property therein has not passed, and maintain an action against the seller for damages for breach of warranty; (d) rescind the contract to sell or the sale and refuse to receive the goods, or, if the goods have already been received, return them or offer to return them to the seller and recover the price or any part thereof which has been paid; (a) accept or keep the goods and set up against the seller the breach of warranty by way of recoupment in diminution or extinction of the price; (b) accept or keep the goods and maintain an action against the seller for damages for the breach of warranty. These four subsections show: (1) That the buyer may refuse to take the goods, or, if he has already taken them, he may undo what he has done and in neither case will he be liable to pay for the goods. But it is only in the first case, where he has refused in the first instance to take the goods, that the buyer will have the right to sue the seller for the damages caused by the seller's breach of contract. If he has already taken the goods and then rescinds, the buyer may recover no damages from the seller. Of course, if the buyer has paid the price, or part of it, he may sue the seller and get that money back. (2) The two remaining subsections show that the buyer may, if he cares to, keep the goods, and then, if he cannot agree with the seller as to the amount which should be deducted from the price, he may wait until the seller sues him and in this suit set up in a cross-action a claim for the damages sustained by the breach. The judgment against the buyer will then be the amount of the purchase price less the amount of the damages. Having now sketched the remedies of the buyer in outline form, we may now devote some attention to some of the details connected with these four remedies, and we shall take them up in the following order: (1) The right of the buyer to refuse to take the goods and to sue the seller for damages; (2) the right of the buyer to rescind the contract; (3) the right of the buyer to accept the goods and to set up breach of warranty by way of recoupment; (4) the right of buyer to accept the goods and to sue the seller for damages for breach of warranty. (a) BUYER MAY REFUSE TO ACCEPT THE GOODS It is to be noticed that subsection (c) authorizes the buyer to refuse to accept the goods if the title has not passed. If the title has passed to the buyer, subsection (c) does not govern. It is true that title to goods, which, because of a breach of warranty, do not comply with the contract, will not pass to the buyer merely by reason of an act of unconditional appropriation, or because the sale was of ascertained goods in a deliverable state, because, as has already been seen, these presumptions do not govern where there is a breach of warranty. We have seen that a buyer has the right of examination, and that until the opportunity to examine has been given him, he will not be deemed to have accepted the goods. Acceptance of the goods is an acceptance of title. The reason for recalling this matter here is for the purpose of making it clear that the buyer's right to refuse the goods exists when and only when he has not accepted. We have previously discussed what constitutes an acceptance as defined in section 48 of the Sales Act, and it there appeared that a |