1 The trial court submitted tbe case to tbe jury on tbe issue of negligence, and refused an instruction asked by tbe'defendants in tbe following words: “If tbe contract was for a certain quality of berries, and you find tbat tbe berries were not of tbat quality wben loaded in St. Louis, tben defendants are not prevented, by reason of taking tbe berries from tbe car, from recovering sucb damages as resulted to tbe defendants from tbe fact tbat tbe berries were not of tbe quality ordered, or from tbe fact, if you find it to be a fact, tbat tbe berries were shipped with cabbage, and tbat tbe presence of sucb cabbages brought about tbe injury or damage to tbe berries. If you find tbat sucb damages resulted to tbe defendants, tben you are to allow sucb damages as a credit upon tbe ■contract price for tbe berries.” Error is assigned upon this refusal. It will be noticed tbat defendants do not plead breach •of warranty in tbe sale of tbe property. Their defense is tbat tbe berries were not of tbe kind and quality ordered, and were not worth to exceed tbe sum of one hundred and sixty dollars. Tbe evidence shows tbat they accepted tbe fruit witliout objection, and refused to pay because it was not what they ordered. We understand tbe law to be well. settled tbat wben goods are tendered by tbe seller in performance of an executory contract of sale, and accepted by tbe buyer after opportunity of inspection, without objection, tbe purchaser is liable for tbe price agreed upon, unless there be .a warranty intended to survive tbe acceptance. Allison v. Vaughan, 40 Iowa, 421; Hirshhorn v. Stewart, 49 Iowa, 418; Mackey v. Swartz, 60 Iowa, 710.
2 Defendants insist, however, tbat this rule of law is based upon waiver, and that, as plaintiff did not plead waiver, be •cannot rely upon it. For tbe purposes of tbe case, we may concede tbat plaintiff should have pleaded waiver in bis reply in order to properly present tbe issue; but we find, upon examining the record, tbat tbe case was fried upon tbe theory tbat sucb a pleading was not necessary *614to present the question. Evidence to sustain the waiver was introduced without objection, and the case was tried as if such issue was tendered. Moreover, the instructions given by the-court were not excepted to. The sole complaint with reference thereto is that the court failed to give the instruction asked. That, as we have seen, related to breach of warranty or of contract, and to the damages resulting therefrom, and, as we have seen, was properly refused. Again, by the terms of the contract between the parties, the fruit was to be delivered to the purchasers at St. Louis, Mo-., and there is no evidence as to the actual value of the goods in St. Louis at the time they were delivered. As counsel were content to try the case in the trial court as if a reply pleading waiver had been filed, and as they did not properly call the attention of the trial court to the defect, requests for instructions or otherwise, they are in no position to take advantage of the omission. See Beach v. Wakefield, 107 Iowa, — (76 N. W. Rep. 688), and cases cited.
3 II. After partially inspecting the goods, defendants gave a receipt to the railroad company for the car and its contents, which contained this statement, “Received above O. K.”' This receipt was offered in evidence by the plaintiff, and admitted over defendants’ objection. There was no error in this. The condition of the goods when received was a material inquiry, and -defendants’ written admission that they were “O. K.” was relevant and competent • evidence. We discover no prejudicial error, and the judgment is AFFIRMED.
