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viously examined, he is not deemed to accept them unless and until he has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract.

(2) Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract.

(3) Where goods are delivered to a carrier by the seller, in accordance with an order from or agreement with the buyer, upon the terms that the goods shall not be delivered by the carrier to the buyer until he has paid the price, whether such terms are indicated by marking the goods with the words "collect on delivery," or otherwise, the buyer is not entitled to examine the goods before payment of the price in the absence of agreement permitting such examination.

Question 353: (1) What is the right of the buyer to examine the goods?

(2) A sells goods to B shipped by express C. O. D. Is the carrier bound to permit B to examine the goods? If he accepted delivery and paid the price would he subsequently have the right to reject if examination revealed defects?

Case 354. Ziff Mfg. Co. v. Pastorino, 120 Wis. 176.
Facts: The facts appear in the opinion.

Point Involved: The buyer having the right to test the goods, what constitutes a reasonable test, and the consequence of his making an unreasonable test?

WINSLOW, J.: "This is an action to recover the purchase price of a barrel of vanilla sold by the plaintiff to the defendants, who were wholesale manufacturers of candy, under an agreement that if, upon fair test, it did not prove satisfactory it might be returned. The defense was that the vanilla was of poor quality and proved unsatisfactory upon a test being made, and was returned. A verdict for the plaintiff was directed on the ground that

the evidence showed without dispute that the defendants had accepted the vanilla by using in their business a far larger amount than was reasonably necessary for testing purposes. Examination of the evidence shows that the direction was plainly right. It appeared without dispute that a satisfactory test could be made by the use of a few ounces; also that the defendants used from four to six ounces daily in the manufacture of candy for a period of more than six weeks, during which time they made and sold about three tons of candy flavored with the vanilla, although by their own admissions they discovered that it was not satisfactory after making the first test. For testing purposes they could only use such quantity as was fairly and reasonably necessary to determine its quality. Cream City G. Co. v. Friedlander, 84 Wis. 53, 54 N. W. 28. When they went beyond this, as they unquestionably did in this case, they made it their own, and lost the right of rejection.

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By the COURT: "Judgment affirmed.”

Question 354: What right of testing did the buyer have in this case? Was the buyer liable for the price of the goods in this case notwithstanding the quality was imperfect? Why?

§ 369. (Sales, Sec. 82.) What constitutes acceptance by buyer.

Case 355.

Uniform Sales Act, Sec. 48.

Section 48. (What Constitutes Acceptance.) The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him, and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods intimating to the seller that he has rejected them.

Section 49. (Acceptance Does Not Bar Action for Damages.) In the absence of express or implied agreement of the parties, acceptance of the goods by the buyer shall not discharge the seller from liability in damages

or other legal remedy for breach of any promise or warranty in the contract to sell or the sale. But, if, after acceptance of the goods, the buyer fail to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows, or ought to know of such breach, the seller shall not be liable therefor.

Question 355: (1) In what three ways may acceptance by buyer be shown?

(2) May a buyer accept a defective performance and still hold the seller for damages? Under what circumstances?

Case 356. Cream City Glass Co. v. Friedlander, 84 Wis. 53, 21 L. R. A. 135.

Facts: The Cream City Glass Co., manufacturers of glass, bought from Friedlander a quantity of soda ash. The ash was delivered and the buyer on receiving it examined it and found it water-soaked and at once notified the seller that it was unfit for use, and that such soda ash was held subject to the seller's orders. About a month later, the ash being still uncalled for, the buyer used about three-fourths of a ton to test whether it could be used in making glass, and this test was unsatisfactory. The ash had been paid for on its arrival before it was known to be defective. This is a suit by the buyer for the recovery of the money so paid.

Point Involved: Whether use of the property by the buyer after his rejection amounts to an acceptance by him. Whether a test after a rejection is a use of the property within the meaning of the rule.

WINSLOW, J.:

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Assuming that the evidence is sufficient to establish an implied warranty that the soda ash in question was of a quality reasonably fit to be used in the manufacture of glass, the question is, could the plaintiff, after having decided that the material was wholly unfit, and notified the defendant of its decision and its rejection of the material, proceed to use three-quarters of a ton of the material in making a practical test, and still insist on its right of rejection? But this

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test is plainly for the purpose only of enabling the purchaser to decide whether the material conforms to the contract. If the fact can be determined by inspection alone, the test is not necessary, and the use of the material, therefore, clearly unjustifiable. Now, in this case the plaintiff's officers determined at once, and upon inspection alone, that the material was unfit for their purposes, and so notified the defendant, and rejected the entire lot. They did not claim to need any test. They took their position definitely. After that act they could not deal with the property in any way inconsistent with the rejection, if they proposed to insist upon their right to reject. Churchill v. Price, 44 Wis. 540. They must do no act which they would have no right to do unless they were owners of the goods. Benjamin, Sales, 6th ed., § 703. Under these rules it is evident the plaintiff had no right to use up a quantity of the material several weeks after the rejection. By the rejection it became defendant's property, if such rejection was rightful. Plaintiff had no right to use any part of it. It is claimed that the use was simply for the purpose of providing evidence of unfitness for the purposes of the trial of this case; but one has no right to use his opponent's property for the purpose of making evidence. The act was an unmistakable act of ownership, and entirely inconsistent with the claim that the material had been rejected, and was owned by defendant. It follows that the judgment must be reversed."

Question 356: State the facts, the question presented and the Court's decision in this case.

(2) A contracted with B to manufacture, sell and deliver to B and put in running order a certain machine. A set up the machine and put it in running order. B found it unsatisfactory and notified A that he rejected the machine. He continued to use it for three months, but continually complained of its defective condition. At the end of the three months he took it down and notified A. to come and get it. Has B lost his right to reject the machine? (Brown v. Foster, 108 N. Y. 387.)

CHAPTER 46.

RIGHTS OF SELLER UPON NON-PERFORMANCE

§§ 370 to 384. (Sales Sections 83 to 97.) Cases follow this note.)

(Note: By reason of lack of space and because the subject may perhaps be as well treated by a summary as by any other method, the rights of a seller, both judicial and non-judicial, are here tabulated.)

Rights and Remedies of Unpaid Seller.

1. Goods not delivered, title not passed, buyer in default, right to rescind contract and sue for damages. Here we assume the buyer is in default; the seller need not go on but may sue for damages.

2. Goods not delivered, title not passed, buyer in default, right to rescind contract and sue for price. Generally in this case the seller cannot sue for the price, but must sue for his damages. But the sales act provides that if the price is payable on a certain day irrespective of delivery or transfer of title, the seller may sue for that sum, but if it appears before trial that the seller is in default, that is a defense. Example: A agrees to pay $100 July 1st, $100 September 1st, when he is to get delivery. The first $100 is payable regardless of performance of A's part. Also if in such a situation, the goods cannot be resold for a reasonable price, the seller may tender the goods, and then upon refusal by the buyer may sue him for the purchase price; but in this connection note that if the buyer notifies a seller to stop performance, the buyer cannot go on and perform, but his damages are measurable as of the time when he was so notified.

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