Lee v. Bangs

Gilfillan, C. J. The order of the court below for judgment on the pleadings in favor of the plaintiff (allowing defendant the part-payment set up by him) was right. The matters set up in the answer constituted no defence. The answer admits that defendant ordered the goods that were sent to him, and the price of them, but alleges that he gave the order in May for the delivery of the goods in the fall, and that it was agreed that upon a certain contingency be might countermand or cancel the order in part; that the goods were sent to him June 27th ; and that August 16th he gave plaintiff notice 25 that he would accept only a specified quantity of the goods. Of course, the right to countermand the order would, of necessity, have to be exercised before the delivery of the goods. By accepting the goods, he would waive his right to countermand, and he also waived his right to object that the goods were prematurely sent him. He ought to have declined to receive the goods at the time, and notified plaintiff of his so declining; instead of which he received the goods, and made to plaintiff no objection till about seven weeks had passed, — certainly an unreasonable time to wait. The answer that the goods were sold by sample, and that they were not equal to the sample, is still worse, for it does not appear that he ever gave plaintiff any notice of that. One purchasing by sample must, upon the goods being sent him, examine them, and, if they do not come up to the sample, must decline to receive them, and within a reasonable time notify the seller. If he receive them and is silent, he will be deemed to have acquiesced in the quality. Order affirmed.