was, in fact, Ceara rubber; there was no question that it was of the right kind. But it was not of the second quality. There is no necessity to disregard the words describing the rubber as of the second quality. They signified a distinct and well-known, though not absolutely uniform, grade of rubber. There was no exact standard or dividing line between rubber of the second quality and rubber of the third quality, any more than there is between daylight and darkness. But nevertheless a decision may be reached, and it may be easy to reach it in a particular case, that certain rubber is or is not of the second quality. This general designation being given, the specification 'as per samples' being also included in the note, the rubber must also be equal to the samples. It must be rubber of the second quality, and it must be equal to the samples. If it fails in either particular, it is of no consequence that it conforms to the other particular. There is no inconsistency in such a two-fold warranty, and this rubber having been found to be not of the second quality, the warranty was broken, without regard to the question whether or not it was equal to the samples."

Warranty of Fitness. Where an article is bought for a particular purpose and that purpose is made known to the seller who is a grower or manufacturer and no selection is made by the purchaser, there is an implied warranty that the article is fitted for the specified purpose. This rule was applied in Gerst v. Jones,44 in which defendant agreed to furnish to plaintiff boxes fit for cigar boxes. The court said:

"Where the purchaser does not designate any specific article but orders goods of a particular quality or for a particular purpose, and that purpose is known to the seller, the presumption is the purchaser relies on the judgment of the seller, and the latter, by undertaking to furnish the goods, impliedly undertakes they shall be reasonably fit for the purpose for which they are intended, and he will be answerable for any defect in the material or in the construction by which the value is diminished. This rule applies with peculiar force where the seller is the manufacturer.

"These principles are decisive of the case in hand. The 44 32 Gratt. (Va.) 518, 34 Am. Rep. 733.

transaction was not a sale of an existing chattel selected by the plaintiffs, but an executory contract to manufacture and deliver from time to time, as they might be needed, a number of tobacco boxes for a particular purpose known to the defendant. The defendant, in undertaking to furnish the boxes, impliedly agreed that they should be fit for that purpose. Had the plaintiffs gone to the defendant's factory and themselves selected certain boxes such as they believed would answer their purposes, it is very clear the defendant would not be liable, however worthless the boxes might be, because the plaintiffs in that case must have relied on their own skill and judgment exclusively. But the plaintiffs made no selection; they left that to the defendant; they relied on his skill and judgment as a manufacturer to furnish an article suited to the business in which they were engaged.

But if a buyer buys goods of a seller who is not the maker and who has no special knowledge of their fitness, and the buyer knows this, and has had an opportunity of inspection, the seller is not liable for an implied warranty.45

Where goods are bought from a manufacturer or dealer handling such goods, there usually is an implied warranty that they are merchantable. 46 But the rule is not uniform with respect to dealers.47

Warranty in Sale of Provisions. In Fairbank Canning Company v. Metzgar,48 the facts were that defendant contracted to purchase dressed beef of the plaintiff, which the plaintiff declared had not been heated before being killed, and which was to be thoroughly chilled before being loaded on the cars and should be in first-class condition in every respect and merchantable. The beef on the way began to spoil and defendant shipped back some 12,000 pounds to the plaintiff, which the plaintiff refused to receive. The question arose whether there had been any warranty of quality in the sale. The court said:

"The rule is well settled by the court of last resort in

45 Scott Lumber Co. v. Haffner Lothum Mfg. Co., 91 Wis. 667.

46 Little v. Van Sickle, 115 Mich. 480.

47 Am. Forcite Powder Co. v. Brady, 4 N. Y. App. Div. 95. 48 118 N. Y. 260.

many of the States that the vendor of an article manufactured by him for a particular use, impliedly warrants it against all such defects as arise from his unskillfulness either in selecting the materials or in putting them together and adapting them to the required purpose.

"One who prepares meat for the wholesale market may be said to come within that rule, because he purchases the cattle, determines whether they are healthy and in proper condition for food, and upon his skill in preparing and dressing the meat for transportation a long distance, its quality and condition as an article of diet for the consumer largely depends."

In the case of food bought at retail with the knowledge of the seller for home consumption, there is an implied warranty of quality and wholesomeness.49

RECEIPT AND ACCEPTANCE BY BUYER

It is the duty of the buyer to receive and accept the goods if they are the goods ordered by him. If he has had an opportunity to inspect the goods and such goods are delivered he cannot refuse them. If the goods have been ordered by sample or description, then he is entitled to inspect them before accepting them.

The Sales Act provides that where goods are delivered to a buyer and are not previously examined, he is entitled to a reasonable opportunity to examine them. But where goods are given to a carrier with instructions not to deliver to buyer until he has paid the price, the buyer is not entitled to examine the goods before paying the price.50

§ 68. Retention of Goods as Acceptance. Retention of goods may amount to an acceptance of them, where such conclusion is warranted by previous transactions of the parties. In what is known as the "Eelskin Case",51 the defendant, a corporation engaged in the manufacture of whips, had received and paid for several consignments of eelskins from the plaintiff. Finally plaintiff sent a lot of eelskins to the defendant, who failed to return them, or to

49 Hoover v. Peters, 18 Mich. 51.

50 Uniform Sales Act, § 47.

51 Hobbs v. Massasoit Whip Co., 158 Mass. 194, 33 N. E. 495.

give notice to the plaintiff that defendant declined to accept the skins. Subsequently the skins were destroyed and the plaintiff sued to recover the price for them. The court, through Holmes, Judge, said:

"The case comes before us on exceptions to an instruction to the jury, that, whether there was any prior contract or not, if skins are sent to the defendant, and it sees fit, whether it has agreed to take them or not, to lie back and to say nothing, having reason to suppose that the man who has sent them believes that it is taking them, since it says nothing about it, then, if it fails to notify, the jury would be warranted in finding for the plaintiff.

"Standing alone and unexplained, this proposition might seem to imply that one stranger may impose a duty upon another, and make him a purchaser, in spite of himself, by sending goods to him, unless he will take the trouble, and be at the expense, of notifying the sender that he will not buy. The case was argued for the defendant on that interpretation, but in view of the evidence, we do not understand that to have been the meaning of the judge, and we do not think that the jury can have understood that to have been his meaning. The plaintiff was not a stranger to the defendant, even if there was no contract between them. He had sent eelskins in the same way four or five times before, and they had been accepted and paid for. On the defendant's testimony, it is fair to assume that, if it had admitted the eelskins to be over twenty-two inches in length, and fit for its business, as the plaintiff testified, and the jury found that they were, it would have accepted them; that this was understood by the plaintiff; and, indeed, that there was a standing offer to him for such skins. In such a condition of things, the plaintiff was warranted in sending the defendant skins conforming to the requirements, and even if the offer was not such that the contract was made as soon as skins corresponding to its terms were sent, sending them did impose on the defendant a duty to act about them; and silence on his part, coupled with a retention of the skins for an unreasonable time, might be found by the jury to warrant the plaintiff in assuming that they were accepted, and thus to amount to an acceptance."

§ 69. Carrier Not Authorized to Receive and Accept. Although a carrier is presumed to receive goods as the

agent of the consignee, he is not necessarily the agent's consignee for actual receipt, nor for acceptance of the goods under the Statute of Frauds, although the consignee may make him his agent to act in both capacities. The court said:

"It has never yet been decided in any case that is entitled to respect as authority, that a mere carrier designated by the buyer can both accept and receive the goods so as to answer the statute. A buyer may accept and receive through an agent expressly or impliedly appointed for that purpose. 1952

§ 70. Right of Inspection after Receipt. Where goods are ordered by mail, and have not been previously approved, it is the right of the consignee to inspect them after receipt. In Allard v. Greasert, "the defendant put the plaintiff directly on notice that he relied on the declaration contained in Terpenning's letter. As the defendant could not possibly inspect the twine before it was purchased, he had a right to rely on the statement in the letter of the plaintiff's manager as to the quality of the goods to be furnished. If the plaintiff failed to furnish first-class twine as represented, he had a right to a reasonable time after the receipt of the twine in which to inspect it, rescind the whole contract, and return the goods received, or, if he so elected, he had the right to retain the inferior article, and recoup the damages which he sustained by reason of the failure of the plaintiff to furnish goods of the proper quality.'' 53

To inspect the goods the vendee may do what is reasonably necessary for the purpose. Where defendant bought a carload of posts from plaintiff, to be shipped to him by rail, and in unloading them found that they were not of good quality, and after replacing the posts taken off, refused the whole lot, it was held he was entitled to do so, as there was an implied warranty of merchantableness.54

52 61 N. Y. 1.

53 Graff v. Osborne, 56 Kans. 162, 42 Pac. Rep. 704.

54 Dowdle v. Bayer, N. Y. App. Div. 308.