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title will pass upon delivery to a carrier, such delivery amounts to performance by the seller. Therefore, the loss of the goods by the carrier, their delay in transportation, their depreciation after shipment are matters which the buyer must have out with the carrier, assuming the seller is not in default in any manner.
Example 29. A sold coffee to B to be loaded by A on cars at Canton, Ohio, for shipment to B, at Pittsburg. The coffee was lost in transportation. A sues B for the price. Conceding the title passed at Canton, B must pay the price, and look to the carrier for his remedy if any. 86
Sec. 81. BUYER'S RIGHT TO EXAMINE THE GOODS. The buyer who has not examined the goods before delivery, has after delivery a right to a reasonable opportunity to examine them to determine whether they conform to the contract.
As a buyer has a right to reject goods which do not conform to the terms of the bargain, he has a right to know whether they are in accordance with the contract. The law therefore gives him the right to examine the goods, or, if a test is necessary, to make a reasonable test before it can be said that he has accepted them. If he will not exercise his right, then he must be deemed to have accepted the goods. What constitutes a reasonable time in which to examine depends on the circumstances.
Example 30. P sold vanilla to Z, a candy manufacturer. Z used a considerable portion, when a fair test
86. Dannemiller v. Kirkpatrick, 201 Pa. 218, 50 Atl. 928; see also Pittsburgh Co. v. Cudahy Co., 260 Pa. 135, 103 Atl. 548.
could have been made by use of a few ounces. Z then sought to return the balance as of poor quality. Held, that Z had a right to test, but his use in this case was unreasonable and amounted to an acceptance, precluding his right to reject. 87
Sec. 82. WHAT CONSTITUTES ACCEPTANCE BY BUYER. The buyer accepts the goods, and therefore cannot thereafter reject them (although he may still sue for damages as hereafter shown) when he so states, or deals with them inconsistently with the seller's title, or does not reject them within a reasonable time.
If the buyer accepts he cannot reject even if the goods are not in compliance with the contract. He shows acceptance in any of three ways: (1) By so intimating to the seller; (2) by dealing with the goods in any manner that is inconsistent with the seller's ownership; and (3) by failing to reject them within a reasonable time.
Acceptance does not bar an action for damages as hereafter shown.
87. Zipp Mfg. Co. v. Pastorino, 120 Wis. 176.
RIGHTS OF SELLER UPON NON-PERFORMANCE.
Sec. 83. ENUMERATION OF RIGHTS AND REME. DIES OF UNPAID SELLER.
A. Where Goods Have Not Been Delivered to Buyer.
(a) If title has not passed:
(1) A right to withhold delivery;
able on a day certain;
readily resellable for reasonable price,
an offer of delivery having been made. (5) A right to sue for damages for non-ac
ceptance. (b) If title has passed (goods being still undeliv
ered): (1) A lien on the goods; (2) A right of resale (with suit for dam
ages); I. Where goods of perishable na
ture; II. Where seller reserves. right of
resale; III. Where buyer has been in default
unreasonable length of time;
(3) A right of rescission (with suit for dam
ages); 1. Where he has reserved right to
rescind; II. Where buyer in default unrea
sonable length of time; (4) A right to sue for the purchase price; (5) A right to sue for damages for non-ac
B. Where Goods Have Been Delivered to Buyer or His
Agent. (a) Where title has not passed:
(1) Right to sue for price or damages;
(2) Right to reclaim goods. (b) Where title has passed: (1) Right to stop in transit, if buyer in
solvent; (2) Right to sue for price. The rights and remedies above enumerated are those provided by the Uniform Sales Act, but the arrangement and tabulation is that of the author of this series. These rights and remedies are commented on in the following sections.
Sec. 84. IN GENERAL OF THESE RIGHTS AND REMEDIES.
It will be noticed by the above tabulation that the rights and remedies of the seller in case of a non-delivery of the goods by him (rightfully of course), are broad enough to protect him against loss, and may consist in his appeal to the court for his damages or the purchase price; or may consist in his own act in rescinding the contract, or reselling the goods with no appeal to the court. If he has parted with the goods or if he has sold on credit, his remedy in the absence of settlement by the buyer is necessarily an appeal to the court for judgment upon the debt. Of course in such a case, if title has not passed, which is unusual (except in case of conditional sales), he may recover the goods themselves, peaceably if he can, by law if he must. Let us consider his various rights under the different circumstances.
Sec. 85. WHETHER SALE IS ON CREDIT. In determining the rights of an unpaid seller, where there has been no delivery by him, we must consider whether the sale is for cash or on credit. If on credit the seller is in default unless he delivers the goods as agreed upon. A sale may be on credit by implication, as by a prior course of dealing.
In considering the rights of an unpaid seller before delivery, it is essential to ask the question whether the sale is for cash or on credit. For obviously if the sale is on credit, there is no right to call for payment before delivery. After the seller has made his contract, he cannot change his mind and insist on cash, unless in the meantime the buyer has become insolvent; in that event he may withdraw the credit.
A sale may be upon credit through inference from an established course of action, that is, if credit has been previously given in former instances, the seller cannot insist on payment after he has made the sale, but would have to incorporate the new term in his contract when made.
A. Where Goods Have Not Been Delivered to Buyer.
(a) If title has not passed. Sec. 86. GOODS NOT DELIVERED, TITLE NOT PASSED, RIGHT TO WITHHOLD DELIVERY OR RE