137 Mich. 708 | Mich. | 1904
(after stating the facts).
The law applicable to this case is stated by the Supreme Court of the United States in Pope v. Allis, 115 U. S. 363, 372 (6 Sup. Ct. 69, 73):
“When a vendor sells goods of a specified quality, but not in existence or ascertained, and undertakes to ship them to a distant buyer when made or ascertained, and delivers them to the carrier for the purchaser, the latter is not bound to accept them without examination. The mere delivery of the goods by the vendor to the carrier does not necessarily bind the vendee to accept them. On their arrival he has the right to inspect them to ascertain whether they conform to the contract, and the right to inspect implies the right to reject them if they are not of the •quality required by the contract.”
Where goods are sold and shipped to the vendee, and the vendor draws a sight draft with bill of lading attached, bhe vendee is not entitled to examine the goods in the hands of the carrier until he pays the draft and procures the bill of lading. In such case the vendee’s only remedy is, having paid for the goods, to rescind the sale and sue for the purchase price, or to retain the goods and bring suit for damages. 2 Dan. on Neg. Inst. § 1734c; Whitney v. McLean, 4 App. Div. 449 (38 N. Y. Supp. 793). The •parties may agree that the vendee and drawee may inspect before acceptance and payment, but, unless they do, no •such right exists; or, if the vendor accompanies his draft with an offer of inspection before acceptance, that is sufficient tender of performance.
Judgment reversed, and new trial ordered.