SYLLABUS.

In reaching your verdict, you are not to consider the defendant's claim for damages growing out of the non-delivery of the balance of the three hundred tons. The iron not delivered is not in question before you, and with it you have nothing to do; further, you are not to be governed in any way by what the Court has heretofore referred to as the evidence in the case in dealing with this particular point, as such evidence was only stated by way of illustration and to show the ground of our conclusion upon the question of law. You are to be governed only by your recollection of the evidence.

This brings us to the second ground of defense, viz., the right of the defendant to reduce the claim of the plaintiffs to the extent of any damage sustained by the defendant by reason of inferior quality of the scrap iron actually delivered and accepted.

It seems to be settled, that where goods are sold at a specific price, and delivered under an agreement, that they shall be of a certain quality, such for instance as No. 1 wrought scrap iron, named in the case before us, that there is an implied warranty that they are of such quality, which goes with the goods. If they prove to be inferior in quality, it is a breach of the warranty. The buyer, even after acceptance, where the goods have not been paid for, may plead the breach of warranty in reduction of damages in an action brought by the vendor for goods sold and delivered.

Benjamin on Sales, 891 and 896 (6 Am. Ed.)

This seems to be the result of the uniform current of decisions, commencing with the opinion of Lord Kenyon in Carmack vs. Gillis, decided in 1789 and cited and approved in Bastian vs. Butler, 7 East, 479, decided in 1806.

In Germaine vs. Burton, 3 Stark., 32 (1820), it was held in an action of assumpsit for goods sold and delivered at a specific price, that the buyer might prove in diminution of damages, that the goods did not correspond with the sample, but were of inferior quality; and that the seller could not recover more than the usual value of the goods.

CHARGE.

This applies with peculiar force to the case at bar, where the suit is upon common counts for goods sold and delivered, in which the right of such diminution has universally been recognized.

To the same effect are Street vs. Blay, 2 B. & A., 456 (1830); Mondell vs. Steel, 8 M. & W., 858 (1841); Draper vs. Randolph & Co., 4 Harr., 454.

Indeed we find no countervailing authority.

Upon this point we therefore instruct you, that if you believe from the evidence that the iron delivered by the plaintiffs under the contract proved was inferior in quality to that specified in the contract, the defendant is entitled to a reduction of the price agreed upon to the extent of the damages it may have sustained, by reason of the delivery of such inferior scrap iron, notwithstanding it was accepted by the defendant. The measure of the plaintiffs' damage in such case would be the market value of the iron at the time and place where it was sold and delivered.

Applying the law as we have above stated it to the facts in this case, you are to reach your verdict.

The question of damages to the defendant so far as they relate to the iron not delivered, is not to be considered by you at all, as we have already said.

If from the evidence you believe that the plaintiffs agreed to deliver No. 1 wrought scrap iron to the defendant and that the one hundred tons and 460 pounds of iron actually delivered were not of that quality, but were of inferior quality, the claim of the plaintiffs should be diminished by whatever damage the defendant has suffered by reason of such inferior quality as shown by the proof in this case.

If you should believe that the plaintiffs delivered to the defendant 100 tons of iron which was in quality number one wrought scrap iron, such as named in the contract, in that case the plaintiffs would be entitled to recover for the 100 tons at the contract price, with interest thereon from the time of the completion of the delivery of one hundred tons, inasmuch as the plaintiffs now

SYLLABUS.

make no claim for the 460 pounds alleged to have been delivered in excess of the 100 tons.

(Exception noted for defendant to above charge.)

Verdict for plaintiff for $1574.70.

JOHN M. HARPER, trading as JOHN M. HARPER AND COMPANY vs. MARY BAIRD AND ROBERT S. BAIRD, Administrators of CHARLES BAIRd, deceased, late trading as a general partner with JAMES C. McCомв as a special partner in a limited partnership under the firm name of CHARLES BAIRD AND COM

PANY.

Assumpsit-Contract-Sale of Goods-Examination-AcceptanceRefusal to Accept-Tender-Usage af Trade-Evidence.

1. When two papers purporting to be counterparts of the agreement upon which the action is founded have been offered in evidence, both of which were signed by the plaintiff and by him sent to the defendants for acceptance, who endorsed their acceptance upon one of the papers and returned it to the plaintiff, but refused the other; held that the paper that was accepted by the defendants, and so endorsed, and returned by them to the plaintiff, is the one upon which the plaintiff has the right to rely, and is to govern the jury in reaching their verdict.

2.

Questions as to the examination, acceptance or refusal of the goods in question, are for the determination of the jury, and not for the Court, when the evidence is conflicting. The plaintiff is bound to tender or deliver the goods to the defendant in such a manner as to afford a fair opportunity to inspect the same, for the purpose of determining whether they answered the reqirements of the contract.

3.

If after a fair opportunity for inspection the defendant unconditionally accepts the goods, or any part thereof, as in conformity with the contract, he cannot

CHARGE.

afterwards repudiate such acceptance and refuse to pay the contract price for the goods so accepted.

4. Where the agreement is a single contract, the purchaser of the goods has a right to wait until the entire quantity is ready for delivery, before he is called on either to accept or reject them. It is his right to have the opportunity to see and examine the entire lot, to ascertain whether it altogether complies with the contract and also to such reasonable custody and possession as might be necessary for that purpose.

5. If under the usage and custom of the particular trade there is a class or kind of "skins" known to the trade as "Russian goatskins," in such case the term would designate the kind of skins so known to the trade, and would not be merely a geographical description relating to the place of growth or shipment. The seller would have to tender such kind of skins or the buyer would not be bound to accept them.

6. Even if the goods are not of the kind, quality and average weight prescribed in the contract, if the defendant unconditionally accepted the same as his own property, or so used and dealt with them, the plaintiff would be entitled to recover.

(December 7, 1900.)

LORE, C. J., and SPRUANCE and GRUBB, J. J., sitting.

Charles M. Curtis and Benjamin Nields for plaintiff.

Horace Greeley Knowles and Herbert H. Ward for defendants.

Superior Court, New Castle County, November Term, 1900.)

ACTION OF ASSUMPSIT (No. 69, November Term, 1898) upon a contract for the sale of Russian goat skins, which contract is fully set out in the charge of the Court.*

LORE, C. J., charging the jury:

Gentlemen of the jury:—It is claimed by the plaintiff in this suit, that by contract dated the twenty-fifth day of October, 1897, he sold to Charles Baird & Company, the defendants, 14,609 goatskins for the sum of $7,406.08. That when the skins were tendered

* See also report of same case in the Supreme Court, later in this volume.

CHARGE.

and delivered under the contract, the defendants refused to accept and pay for the same. That in August, 1898, after such refusal, under an agreement between the parties, which was to be without detriment to the rights of either party under the contract of sale, the goat skins were sold at public auction, for the net sum of $5,794.34, which sum the plaintiffs received, leaving an unpaid balance of the contract price of $1,611.74—including certain expenses-which is claimed by the plaintiff as due to him from the defendants under the contract, with interest thereon from August 1st, 1898.

Two papers, purporting to be counterparts of the agreement of October 25, 1897, have been offered in evidence. It is conceded that both of these papers were signed by the plaintiff, and were sent to the defendants, who endorsed their acceptance upon one of the papers and returned it to the plaintiff, but retained the other in their possession. It is claimed that the two papers differ in stating the average weight of the skins, the one endorsed by the defendants and returned to the plaintiff stating them as "averaging about 33 to 34 pounds per dozen;" and in the paper retained by the defendants the word "about" is omitted.

We have been asked to instruct you, which of these two papers is the contract controlling this case. We say to you, that both of these papers having been transmitted to and received by the defendants for their acceptance, that the one accepted by them and so endorsed and returned by them to the plaintiff, is the one upon which the plaintiff had a right to rely, and you are to be governed by that paper as the contract in reaching your verdict.

The contract, offered in evidence by the plaintiff, is in the following terms:

"Sold to Mess. Chas Baird & Co.

"Philadelphia, October 25, 1897.

"For account of whom it may concern about fourteen thousand (14,000) dry salted Russian goat skins, fair merchantable quality,