Henkel v. Welsh

Cooley, J. We are not quite satisfied that it was necessary for Henkel to introduce evidence that according to the usage of the business the receipt of the fish and putting them in his cellar was no waiver of objections that might subsequently be found to exist in point of quality or of variance from orders. Indeed a usage that should require a dealer at his peril to open and examine every package before' receiving it would be so burdensome and unreasonable that we might well say no one could be bound by it. It would be fixing a condition to a. business which would almost preclude its successful management. But the evidence offered on that point was wholly unobjectionable, and should have been received. If the defects were discovered within such time as under all the circumstances was not unreasonable, it is sufficient. We think the circuit judge erred, also, in declining to charge that notice of the defects given to the agent or broker through whom the sale had been made to the plaintiff was notice to the plaintiff himself. The agency, presumptively at least, continued until the transaction was closed. The'judgment must be reversed with costs and a new trial ordered. The other Justices concurred.