§ 701. If goods are offered as full satisfaction they must be taken as such if taken at all.

Where an offer is made which contemplates action on the part of the offeree, which can only be rightfully taken if the offer is accepted, the offeree is not allowed to take the action and yet assert that he did not accept the offer. The commonest illustration of this principle is where a check is sent in full satisfaction of an unliquidated claim.57 But it is equally applicable where unspecified goods are contracted to be sold by description. If, therefore, the seller notifies the buyer that the goods which he, the seller, is tendering are tendered in full discharge of the seller's liabilities, an acceptance of the goods by the buyer will necessarily involve assent to the proposition. Only on the assumption of such assent is the buyer entitled to the goods. True, he may have a contract right for some goods of the sort, but he has no right to enforce the contract by taking goods from the seller against the latter's will. As, however, a contract, of accord and satisfaction, if made, will be in derogation of the buyer's rights and will operate to discharge one who is by hypothesis failing to perform a legal duty, no artificial presumption should be made that the offer of the seller when he tenders the goods is made only on the condition that they shall be accepted as full satisfaction. Moreover, there is involved a question of consideration as well as of mutual assent. If the seller is merely fulfilling a legal duty in delivering the goods, his doing so will not support an agreement to discharge him from liability; 58 and though the giving of goods, different even inferior-to those contracted for will suffice as consideration, 59 the mere fact that goods which are due are delivered later than was agreed, it seems will not make the delivery sufficient. It is true that unless the contract was for specific goods, the seller, though he was bound to deliver goods of the kind which he does, was not bound to deliver those particular goods. But neither is a debtor who pays part of a debt in attempted satisfaction of the whole bound to pay the particular money which he does, yet that fact does not make his payment suffice as consideration for a promise by the creditor.60

"See infra, § 1854.

69 Ibid.

See supra, § 130.

60 See supra, § 121, also infra, § 704.

§ 702. Acceptance of defective performance by a buyer. There is no reason why the rule in the law of sales should differ from that elsewhere in the law of contracts. When insufficient performance is tendered to the buyer he should not be debarred from recovering damages because of the insufficiency, unless he has agreed to accept what has been offered him as full satisfaction of all his rights, and has received sufficient consideration or his agreement. There seems no ground

for saying that the mere fact that he has taken the goods indicates such assent.61

If ten barrels of flour are contracted for and five are sent, the fact that the buyer takes the five sent certainly does not indicate that he assents to the performance as a full satisfaction. It is a partial performance and partial satisfaction, and he takes it as such; nor is he bound to assume that the seller intended it otherwise. If all ten barrels are sent, but later than they should have been, the same reasoning is applicable. And in the common case where the defect in the performance is the inferior quality of the flour, it is also true that taking the flour does not prove that the buyer agrees to accept it as full satisfaction. As the hypothesis is that the performance is not what the contract requires, the burden is upon the seller to prove an assent to receive it as such. Taking the flour does not necessarily show assent, in fact, to excuse the seller from his breach of contract, and there seems no reason for laying down as an absolute rule of law, which must in a measure be fictitious, that assent is to be conclusively presumed. The weight of authority supports the view here taken but less definitely in regard to the last proposition than the others.

§ 703. The buyer may sue for defective quantity.

The buyer need not accept any performance if the goods offered are too many or too few to satisfy the contract.62 Sometimes, however, he does take what is offered to him, but

61 "It is not the law that the acceptance of the performance of one service or duty when two are due, is an abandonment of all claim of damages for the service not performed." Dicks v.

Belsher, 80 Ala. 369; North Alaska
Salmon Co. v. Hobbs, etc., Co., 159
Cal. 380, 113 Pac. 870, 120 Pac. 27.
62 See infra, § 958.

in such a case it is safe to assume that it would generally be held in the absence of other evidence of assent to an accord and satisfaction that the buyer could recover damages for the failure to deliver as much as the seller had agreed to deliver.63 If such assent could be established, there would be no difficulty in finding sufficient consideration, unless the changed agreement involved a delivery of a smaller quantity than that contracted for, at the price of the larger quantity. It may be observed that where there is defective quantity the seller must generally be assumed to have knowledge of the fact and not to dispute it. Whereas when quality is alleged to be defective this cannot be said. If too large a quantity is sent and accepted, the conclusion of assent to a substituted bargain is irresistible.64 Where goods are delivered in instalments, however, an insufficient quantity may be accepted on the assumption that the remainder will be delivered later. In such a case the buyer if still able to do so may return what he has received and refuse to pay for them or, if he has already paid, may recover the payment.65

§ 704. The buyer may sue for delay in performance.

Lord Blackburn in his treatise on the Law of Sales 66 says: "The vendee may accept the goods and bring his action for any damages he may have actually suffered in consequence of the late delivery. He does not by accepting the late delivery waive any claim he may have for damages arising from the delay." This rule is acknowledged in most of the American

"Titley v. Enterprise Stone Co., 127 Ill. 457, 20 N. E. 71; Harber v. Moffat Cycle Co., 151 Ill. 84, 37 N. E. 676; Hjorth v. Albert Lea Mach. Co. (Minn.), 172 N. W. 488; Fox v. Baggett, 101 Miss. 519, 58 So. 481; Avery v. Willson, 81 N. Y. 341, 37 Am. Rep. 503; Kipp v. Meyer, 5 Hun, 111; Hall . New Hartford Canning Co., 153 N. Y. App. Div. 562, 138 N. Y. S. 866. The buyer is liable to pay for what he accepts. Lorraine Mfg. Co. v. Oshinsky, 182 Fed. 407; Hall v. New Hartford Canning Co., 153 N. Y. App. Div. 562, 138 N. Y. S. 866; and infra, § 958.

64 Capper v. Manufacturers' Paper Co., 86 Kans. 355, 121 Pac. 519; Linger v. Wilson, 73 W. Va. 669, 80 S. E. 1108.

65 Oxendale v. Wetherell, 9 B. & C. 386, 387; Colonial Ins. Co. v. Adelaide Ins. Co., 12 A. C. 128, 138, 140; Boyd v. Second Hand Supply Co., 14 Ariz. 36, 123 Pac. 619; Polhemus v. Heiman, 45 Cal. 573; Williston, Sales, $460.

66 (2d ed.), 524. The doctrine of the text is supported by the later decision of Clydebank Co. v. Yzquierdo y Castaneda, [1905] A. C. 6.

decisions. It seems to be generally assumed that if the buyer does accept delayed performance as full satisfaction of the seller's obligation, he has no further claim, but some evidence other than mere acceptance of the goods is necessary to warrant this conclusion.68 Payment of the price in full has been held sufficient evidence of assent,69 and so has giving a note for the price after the delayed receipt of the goods.70 Either of these circumstances undoubtedly shows assent on the buyer's part, but it is troublesome to find a sufficient consideration. Even though there was assent to an accord and satisfaction when the goods were received, the only consideration for the buyer's agreement to surrender his right to damages for late

delivery, is the actual delivery of the goods. It may be urged that the late delivery is a different thing from the earlier delivery and therefore the consideration is valid. If the late delivery involves a corresponding delay in payment, this seems true and sufficient, but if payment has already been made, or the time of payment is fixed without regard to the date of delivery, it would seem that late delivery though a different thing from early delivery must be regarded as a worse thing. It certainly is true that delayed payment of money is a worse thing than early payment, and will not serve as consideration." Similar difficulties arise where the price has been paid in full, or a note given for it. If the payment is not made until the time of the delivery of the goods, what has been said sufficiently indicates that there will generally be sufficient consideration to support the agreement of the parties.72 If, however, the payment is made at the same fixed date as if there had been prompt delivery of the goods, and assent at the time of delivery is relied upon, as a discharge of the seller from liability for his delay, on ordinary principles of contract there must be consideration given at that time, for the buyer's agreement to surrender his claim. This cannot possibly be found.

It may well be that the English court would follow this reasoning and hold the agreement invalid, but it seems evident that American courts overlook or disregard the point, and the situation must probably be accepted by an American lawyer as one of the cases where an agreement to surrender a right is binding without seal, consideration or estoppel. A few cases, indeed, hold as matter of law that the acceptance of the goods necessarily involves an acceptance of them as full satisfaction of the contract and discharges any right to damages for the delay.73 In a few other decisions the same rule is laid down,

71 See supra, § 120. See also Weeks v. Rector, 56 N. Y. App. D. 195, 200, 67 N. Y. S. 670.

72 There would not be unless the payment would have been due earlier had the goods been seasonably delivered.

73 Fraser v. Ross, 1 Pennew. 348, 41 Atl. 204; Jones v. Bloomgarden, 143

Mich. 326, 106 N. W. 891; Burrowes Co. v. Rapid Safety Filter Co., 97 N. Y. S. 1048; 45 N. Y. Misc. 539; Baker v. Henderson, 24 Wis. 509. In Lee v. Bangs, 43 Minn. 23; s. c., sub nom., Sole Leather Over Mfg. Co. v. Bangs, 44 N. W. 671, acceptance of goods prematurely sent was said to conclude the buyer's rights.