Lead Opinion
Opinion by
“Mr. Eaton knew it was impossible for me to be there. 'There was no understanding of that kind at all.”
So that it is manifest from the testimony that there was no time or place of inspection or acceptance agreed upon by the parties, or for the payment of the purchase price. The payment, therefore, became due and payable on a complete delivery, and there could be no such delivery without an opportunity for inspection. Under an executory contract for the future sale and delivery of goods of a specified quality, the quality is a part of, the description, and the seller is bound to furnish goods actually complying with such description. If he tenders articles of inferior quality, the vendee is not bound to accept them; and, unless he does so, he is not liable therefor. This necessarily gives to the vendee the right, and imposes upon him the duty, of inspection, and he must therefore be given an opportunity to make such inspection before becoming liable for the purchase price,' unless the contract otherwise provides; and where articles are to be delivered to a common carrier by the vendor, to be forwarded to the vendee at a distant point, and no provision is made for inspection and acceptance before or at the time of shipment, the vendee is entitled, under the law, to a reasonable time, after the goods arrive at their destination, in which to exercise the right of inspection, and to accept or reject them, if they do not comply with the contract. Brigham v. Hibbard, 28 Or. 386 (43 Pac. 383) ; Johnson v. Hibbard, 29 Or. 186 (44 Pac. 287: 54 Am. Rep. 787) ; Steiger v. Fronhofer, 43 Or. 178 (72 Pac. 693) ; Puritan Mfg. Co. v. Westermire, 47 Or. 557 (84 Pac. 797).
Pierson v. Crooks, 115 N. Y. 539 (22 N. E. 349: 12 Am. Rep. 831), is much in point. That case construed a contract between a New York importer and a London
The same doctrine was applied by the Supreme Court of Massachusetts in Alden v. Hart, 161 Mass. 576 (37 N. E. 742). In that case the defendants, residing at New Bedford, ordered a quality of coal to be shipped from Weehawken, N. J., by certain line of barges, defendants to pay the freight. The coal shipped was not of the kind and quality ordered, and the court held that the defendants had the right to reject it on its arrival at New Bedford, Mr. Chief Justice Field remarking: “Whether in such case as this is the title to the property passes to the vendee when the coal is delivered on board the barge is not free from doubt, and we have not found it necessary to decide the question. If it be assumed, in favor of the plaintiffs, that the title to this coal passed to the defendants when it was selected by the plaintiffs, and laden free on board upon the barge at Weehawken, and when bills of lading were given to the plaintiffs, under which the cargo was to be delivered to the defendants or their assigns at the port of New Bedford, they paying the freight, we are yet of the
Finding no error in the record, the judgment is affirmed. Affirmed.
Rehearing
Denied conditionally October 6, 1908.
On Petition for Rehearing.
Opinion by
The attention of the court is called to the fact, by a petition for rehearing, that the instruction was erroneous, because it is admitted that the failure of the plaintiff to deliver the hay, except the car load in dispute, was by the consent and at the request of defendants, and therefore they are not entitled to recover damages for such failure. The error in giving the instruction referred to, however, did not affect the real controversy between the parties, and, as the amount of damages allowed by the jury can be segregated from the rest of the verdict, the error does not call for a reversal of the case, if the defendants will, within 10 days, remit the amount of such damages; otherwise, a new trial will be ordered. Mackey v. Olssen, 12 Or. 429 (8 Pac. 357) ; Cochran v. Baker, 34 Or. 555 (52 Pac. 520: 56 Pac. 641).
The other points made in the petition were all considered by' the court on the former hearing, and need not be further alluded to at this time.
Affirmed: Rehearing- Conditionally Denied.