32 Conn. 146 | Conn. | 1864
This suit was for the pi’ice of some barrels of apples claimed to have been sold and delivered. The sale was by sample, and the defendant, on their being delivered to him, objected to receiving them on the ground that they did not correspond with the sample, and tendered them back to the plaintiff, and the question before the court was whether they did in fact correspond with the sample. The plaintiff claimed that in consequence of the delivery, so that the apples came into the defendant’s possession, the burden of proof was upon the latter to show that they did not correspond with the sample ; but the court décided that, as they were not accepted, and were tendered back to the plaintiff in due season on dis
The executory contract for the sale and delivery of the goods does not become executed, so as to lay the foundation for an indebitatus assumpsit, until goods answering the description of the contract, that is, in this case corresponding substantially with the sample, have been delivered, or there has been a complete acceptance of them by the vendee. The error of the plaintiff’s counsel in this case consists in treating the delivery of the goods at the defendant’s place of business as a complete delivery, and tantamount to an acceptance of them by the defendant. If the defendant had received them as in execution of the contract, or had kept them for an unreasonable time before returning or tendering them back, the plaintiff’s claim would be correct. But while the contract remained executory it would be a strange perversion of justice to bind him to accept and pay for that which he had never purchased, and he clearly did not purchase that which did not answer in quality to the description of his contract.
. The condition that the property may be returned, if it does not answer the description contemplated and agreed upon, is always implied, if there has been no acceptance of it by the
For these reasons we are of opinion that there is no error in the judgment complained of, and a new trial is not advised.
In this opinion the other judges concurred.