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Thus, in Charles v. Carter,18 the plaintiff, who had contracted to sell potatoes to defendant, sued for damages for breach of contract, because the defendant had refused to receive the potatoes from the carrier and refused to pay for them. The contract was for potatoes not specifically identified at the time. On shipment the plaintiff took a bill of lading in his own name and, as the court held, thereby kept title in himself. The defendant was notified of the arrival of the shipment and signified his willingness to take the title and possession, and to pay the price, if an inspection of the potatoes showed them to be such as he had contracted for. The privilege of inspection was refused by the railroad company and the defendant refused to receive the potatoes. The court held, that, if these circumstances were found as facts by the jury, the defendant was not guilty of a breach of contract, saying, as a proper instruction to the jury, “If you find that the conduct of the plaintiff and his agents at Kansas City was such that they declined and refused to permit an inspection of the potatoes by the defendant within a reasonable time after their arrival in Kansas City, and an inspection thereof was, in consequence, not made, then it was no longer the duty of the defendant to take such potatoes" 14

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-Expense of Inspection.—The inspection of goods to ascertain if they are in fact what the contract of sale, or its correlated contract of warranty, stipulates they shall be, is a right of the buyer. But it is solely for his benefit as a matter of protection. There is no forceful reason why the seller should pay the expense incurred

V.

13—96 Tenn. 607.

14—Livesly v. Johnson, 45 Ore. 30; Harper V. Baird's Admr., 3 Penna. (Del.) 110; Deutsch Dunham, 72 Ark. 131, “The contract being executory, it is clear that appellant could not be compelled to accept the lumber until

he had an opportunity to inspect it in order to ascertain whether it was such as appellees stipulated to saw." Osborn v. Gantz, 60 N. Y. 540; Croninger v. Crocker, 62 N. Y. 151; Lorymer v. Smith, 1 Barn. & Cress. 1.

by the buyer in thus protecting himself. If he tenders the precise goods contracted for, in the manner agreed upon, he has performed his contract. If the buyer chooses to go to expense in making sure of this performance, it is the buyer's right to do so, but it should also be at his cost. This seems to be assumed as the rule, since no attempts by a buyer to recover such expense are found in the cases.15

There are, however, some cases in which inspection has revealed that the seller did not perform his contract, in which the buyer has been allowed to recover the cost of the inspection. The theory of th

recovery—whether on the ground of damages from the seller's breach, quasicontract, or otherwise—is not clear. The results are obviously just, at least. If the examination develops the fact that the seller has not performed his contract, but is guilty of a breach, any damage which the buyer suffered by the breach is, logically, recoverable. Damage suffered through use of an article which does not conform to the terms of the contract, before that non-conformity is discovered, should come within this rule. So also, even if there be no damage from use of the defective article, the expense to which the buyer has reasonably put himself on the supposition that the seller has properly performed should be recoverable, as a consequence of the seller's breach.18

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15—In Lincoln v. Gallagher, 79 apparently as damages from the Me. 189, there is a dictum to the seller's breach of the contract of effect that the seller must bear sale. the expense of providing the buy- In ascertaining whether the er with a reasonable opportunity goods do conform to the contract to inspect.

or not, it may happen that the 16—That this is the rule, is in- buyer will necessarily have used dicated in Ruben v. Lewis, 46 N. or otherwise have destroyed a cerY. S. 426, buyer's expense for tain amount of the goods tendered. transportation held recoverable; If the goods should turn out not to Stafford v. Pooler, 67 Barb. (N. Y.) conform to the agreement and the 143, limited to necessary ex- buyer should therefore reject penses; Phila. Whiting Co. v. De- them, question might arise as to troit Lead Works, 58 Mich. 29, the seller's right to compensation

-Waiver of Right. The buyer may waive this right of inspection if he chooses. That is, he may accept the title without looking at the goods, or he may refuse the title without claiming an opportunity to inspect. In the one case he gets title to the goods whether they conform to the contract or not; in the other, he is guilty of breach of contract if they do conform to the contract. But he can not be deprived of the opportunity nor legally refused it.

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-Effect of Seller's Delivery to a Carrier.-The mere fact that the goods, as specified by the seller, were accepted by a carrier for delivery to the buyer does not imply any intent on the buyer's part to accept them, nor any legal (constructive) acceptance by him, unless they do conform to the conditions of the contract. We have seen that if goods conforming to the terms of the contract are delivered to a carrier for the buyer, title, if not already passed, is presumed to pass then. If the theory behind this passing of title be, as was suggested in that discussion, that the carrier is legally the agent of the buyer to accept title, then the carrier might also be the buyer's agent to inspect. But whether this be so, or not, the carrier is not so far the buyer's agent that receipt of goods which are not the ones contracted for will vest title in the buyer. It can not be dogmatically stated whether this right of inspection does not exist when proper goods are delivered to a carrier, or whether it does exist and is exercised by the carrier as the buyer's for those destroyed. In Philadel. course, that he could not recover phia Whiting Co. v. Detroit Lead the contract price, as such. His Works, 58 Mich. 29, the court said right to recover in quasi-contract specifically that in such case the appears not specifically to have seller “would be liable for all been decided, except in the case necessary charges and expenses just mentioned, and the analogous in testing the article", and held propositions in quasi-contracts are that he could not recover the value themselves so much in dispute as of the goods used in making the to leave that authority an open test which showed the seller's queston. breach of contract. It is clear, of

agent. But at least it seems reasonably clear that title passes on delivery of proper goods to the carrier, without further act on the buyer's part; and that title does not pass on delivery to the carrier of goods which are not those contracted for. “To constitute a delivery to the carrier a delivery to the consignee so as to pass the title and make the consignee liable for goods sold and delivered, the goods must conform in quantity as well as quality with those named in the order."'17 Hence, if the goods selected by the seller and consigned to the buyer are found on inspection not to conform to the terms of the contract, the buyer may refuse to accept them, or to pay for them, on the ground that he did not buy them.

17-Barton v. Kane, 17 Wis. 38; ments referred to is further indi. Diversey V. Kellogg, 44 Ill. 114; cated by the case of Gardner v. Pierson v. Crooks, 115 N. Y. 539. Lane, 12 Allen (Mass.) 39. One

Occasional dicta imply that Wonson had contracted to sell to some sort of a "conditional title" the plaintiff 131 bbls. of #1 mack. does pass on delivery to a carrier,

erel. On pretended performance which may be "rescinded” by the

of this contract he delivered to buyer. Kuppenheimer V. Wert. plaintiff a number of barrels, heimer, 107 Mich. 177; Magee v.

which in fact contained #3 mackBillingsley, 3 Ala. 679.

erel and some which contained no This proposition is not logi.

mackerel at all but only salt. At cal. The whole theory of the law

a proper time the plaintiff exam. is that title can not be vested in

ined the barrels and elected to a buyer without his consent. His

take title to the goods despite non. agent, the carrier, has no author

conformity with the contract. Beity to assent to title in anything

fore this inspection, however, but the goods contracted for. The

though after the delivery to the buyer himself cannot logically be

plaintiff, the defendant, as a credi. said to have assented to taking

tor of Wonson, had levied on the title in goods not contracted for

goods as Wonson's property. The until he has had a chance to learn

court held that it was Wonson's that other goods than those con

property at the time of the levy, tracted for have been offered to

despite the plaintiff's possession him. If the proper goods have

of it and his subsequent willingbeen offered, the buyer's inspec

ness to keep it, because at that tion does no more than verify the

time the plaintiff had never convalidity of the carrier's assent.

sented to the vesting of title in But if other goods have been

him. Accord, Alamo Cattle Co. v. delivered the buyer's inspec. Hall, 220 Fed. 832; Dube v. Libtion is the first opportunity

erty Clothing Co., 153 N. Y. S. 577, for his assent to be given at all;

91 Misc. 64. until such inspection there is no Of course, if the goods delivered assent, and without assent there to the carrier do conform to the can not logically be title in the terms of the contract, title passes buyer.

at that time, not because the sell. The inaccuracy of the state. er can thrust even a temporary 19-Pierson v. Crooks, 115 N. Y. 539.

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-Waiver Through Delay.-Even if the buyer himself receives possession of them, he is not presumed to have waived their non-conformity with the contract and to have taken title anyhow, until he has had a reasonable time and opportunity to find out that they do not conform to its terms.

“And what is a reasonable time is usually a question of fact, and not of law, to be determined by the jury upon all the circumstances, including as well the situation and liability of injury to the vendor from delay as the convenience and necessities of the vendee."19 In the particular case from which the quotation is taken, the delay in examining the quality of iron in certain hoops was ten days after the carrier had unloaded them, and the court said, this “was not so great that the court can say, as a matter of law, that it was unreasonable, and we are concluded by the finding of the referee from re-examining the question of fact.In Philadelphia Whiting Co.v. Detroit Lead Works&o the sale was whiting, to be of the best quality for use in making putty. The

title on an unwilling buyer, but because the carrier, as buyer's agent, accepts the title.

If one accepts the theory of the carrier's agency to accept title to goods which conform to the contractand this is the only theory which the decisions will harmoniously support—there is nothing inconsistent in the proposition that title to goods no conforming to the contract does not pass at all until the buyer's inspection and acceptance, but that title to goods which do conform to the contract passes on delivery to the carrier.

That this last proposition is correct, see, Skinner V. Griffith & Sons, 80 Wash. 291, 141 Pac. 693.

18–Livesly v. Johnston, 45 Ore. 30; Diversey V. Kellogg, 44 I. 114; Pierson v. Crooks, 115 N. Y. 539; Scranton v. Mechanics Trad. ing Co., 37 Conn. 130; Croninger v. Crocker, 62 N. Y. 151, tender of goods to which the seller's title

deiective; Columbian Iron Works V. Douglass, 84 Md. 44; Fogel v. Brubaker, 122 Pa. 7.

20—58 Mich. 29.

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