
    John Kellogg et al., Respondents, v. James E. Murphy, Appellant.
    (Submitted September 22, 1873;
    decided January term, 1874.)
    This was an action to recover certain moneys advanced by plaintiffs to defendant under a contract for the purchase by the former and sale by the latter of from 1,400 to 1,600 bushels of flax-seed, to be delivered at the railroad depot at Amsterdam. The controversy arose in regard to 201 bags of flax-seed (418 bushels), shipped by defendant to plaintiffs, and received at the Amsterdam depot; plaintiffs were not advised that it came from defendant. Plaintiffs removed it to their storehouse, and emptied 129 bags, mixing with other seed. It was then discovered that a portion of the seed was poor and unmerchantable; plaintiffs immediately deposited the remaining seventy-two bags, in the same condition as received. About two weeks afterward, being advised that the seed came from defendant, they informed him of the condition of the seed, and what had been done. Defendant came to Amsterdam and had an interview with plaintiffs; examined the remaining seed, and acknowledged its inferior quality, and it was then agreed that plaintiffs should retain the seed and allow defendant a sum to be mutually agreed upon therefor, or what it should be reasonably worth. The parties not agreeing as to its value, this action was brought. Defendant claimed that plaintiffs by, taking a portion of the seed had accepted all, and were bound by the contract price, and that the subsequent agreement did not affect the legal obligation. ■ The referee allowed the contract price for what was received, and found the residue was worth fifty cents per bushel, which he allowed defendant. Held, that the referee went to the extreme of the legal rule in holding that plaintiffs, under the circumstances, had accepted and must pay the contract price for the 129 bags; that as to the residue there was no acceptance under the contract, and plaintiff was not bound by the contract price.
    
      Sawyer & Russell for the appellant.
    
      S. W. Jackson for the respondents.
   Reynolds, C.,

reads for affirmance.

All concur.

Judgment affirmed.  