46 N.H. 49 | N.H. | 1865
Upon the case agreed, including what the defendants offered to prove, it appears that Leighton bargained with plaintiffs for a coat made from cloth selected by him ; that plaintiffs made a coat of other and different cloth and sent it to Leighton by the defendants, who were carriers, with directions to receive payment on delivery; that the coat was delivered in a package containing also a letter of advice to Leighton, stating that the coat was of other cloth than that which they sold him, for the reason that they had not enough of that kind; but that the cloth of which the coat was made was better than the other, and they enclosed a sample of the latter that he might compare them.
•On the delivery of the package to Leighton he paid to the defendants the sum charged by the plaintiffs, §24.00, upon condition that they were to hold the money until he could ascertain whether or not the coat was what he bought. He then carried the package to his boarding house, and returned it to defendants’ agent and requested him to pay back the money, which he did; and thereupon he carried back the coat to the plaintiffs and offered to return it to them, but they declined to receive it and demanded the §24.00.
Upon this state of facts we think the action will not lie. The package, it seems, was delivered to Leighton, that he might examine it and determine whether to accept it or not, and the money was put into the hands of the carrier’s servant, only upon the condition that the consignee should find the coat to be what he bought.
It was clearly not what he had bargained for, and he was not bound to take it, even if the cloth was actually better than the other, as asserted by the plaintiffs, and under these circumstances they cannot complain that the carriers received back the package, and returned the money.
There was in fact no acceptance of the coat by Leighton, he having received it conditionally, to be returned in ca'se it was not what he bought.
On the contrary, the consignee is entitled to a reasonable opportunity to examine the packages brought to him ; ascertain the quality of the goods before he determines whether to accept them or not; and a reasonable detention of them for that purpose cannot be regarded as an acceptance, 2 Parsons on Cont. 325; Percival v. Blake, 2 C. & P. 514; especially must it be so when, as in this case, the package was received expressly for the purpose of examining it.
If then, the consignee has the right so to examine the goods without being held to accept them, the carrier may surely give him facilities for making such reasonable examination, without rendering himself chargeable for the goods; and the case is not altered by his requiring the consignee to pay the amount charged, for his own security while being so examined, for this is in no sense a payment of the price.
Had the consignee kept the goods an unreasonable time, a different question would have arisen, but nothing of that kind is stated or suggested by counsel, and we are to take it that the goods were in the consignee’s possession no longer than was required for a reasonable examination.
Upon the same general principles, it is held that a tender of goods does not mean an offer off packages containing them, but an offer of those packages under such circumstances that the person who is to pay for the goods shall have an opportunity afforded him, before he is called on to part with his money, of seeing that the goods so presented for his acceptance are in reality those for which he bargained. Isherwood v. Whitmore & al., 11 M. & W. 347; S. C. 10 M. & W. 757; 2 Greenl. Ev. sec. 611 a; Avery v. Stewart, 2 Conn. 74.
With these views there must be judgment for the defendants unless the plaintiffs desire a trial by jury.