oO-^ VENDEE MAY DISPUTE QUALITY OF GOODS. 



imoo lo let in parol eyidence of the contract appears to us to be a dif- 

 ftreut acceptance from that which afibrds conclusive evidence of the 

 contract having been fulfilled. We are, therefore, of opinion in this 

 case that, although the defendant had done nothing which would have 

 precluded him from oljjccting tnat the wheat delivered to Edgeley was 

 not according to the contract, there was evidence to justify the jury in 

 finding that the defendant accepted and received it." 



A rule nisi on the authority of Morton v. Tibhetts was discharged 

 in Hunt v. Hcclit, which decided that there can ie no accejitance and 

 actual receipt of goods ivithin the 11 th section, unless the vendee has 

 an opiMrtuniiij of judging tvhetJier the goods sent correspond ivith the 

 order ; and hence tlud although there mag he a receipt there need not 

 nccessarihj he an acceptance. The defendant in this action for goods 

 sold and delivered went to the plaintiff's warehouse to buy bones, and 

 inspected a heap of ox and cow bones, and others of an inferior kind. 

 He objected to the latter, and verbally agreed to buy a quantity of the 

 other bones to be separated from the rest, and to contain not more 

 than 15 per cent, of cow bones, giving directions as to where they were 

 to be sent, and the mode of making the sacks. The plaintiff sent 50 

 bags (leg bones marked " os a," and the bullocks " os b"), and 

 according to a request contained in a letter of February 7, filled up the 

 shipping note, and delivered them at the wharf on 9 th of February. 

 On the following day the defendant examined the bones, and refused 

 to accept them, as not being what he had bargained for. Martin B. 

 thought there was no evidence of acceptance .and receipt to satisfy the 

 17th section of the Statute of Frauds, and nonsuited the plaintiff, re- 

 serving leave for him to move to enter a verdict for that amount. 

 Alderson B. said, in discharging the rule, " If a person agi-ees to buy a 

 quantity of goods, to be taken from the bulk, he does not purchase the 

 particular part bargained for, until it is separated from the rest, and he 

 cannot be said to accept that which he knows nothing of, otherwise it 

 would make him the acceptor of whatever the vendor chose to send 

 him, whereas he has a right to see whether in his judgment the goods 

 sent correspond with the order. The statute requires an acceptance 

 and actual receipt of the goods ; here there has been a delivery, but no 

 acceptance." 



Martin B. thus remarked on Morton v. Tihhetfs : " There are various 

 authorities to show that for the puri)osc of an acceptance within the 

 statute the vendee must have had the opportunity of exercising his 

 judgment with respect to the article sent. Morton v. Tihhetts has been 

 cited as an authority to the contrary ; but in reality that case decides no 

 more than tJiis — tlud where the purcliaser of goods taJces upon himself to 



