
    William Crandall, Resp’t, v. Frank Haskins, Appl’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July, 1887 )
    1. Sale of goods—Option to betubn goods and bescind contract— What amounts to.
    The defendant sold hutter to the plaintiff telling him that if it did not suit he would take it back; he wanted plaintiff to try it. Held, that this was not a warranty of quality but an option given by the seller to the buyer to return the butter and rescind the sale if it was in an unsuitable condition. t
    2. Same—Option must be made within a reasonable time.
    
      IMd, that the plaintiff had the right upon ascertaining the fact of its unsuitableness, within a reasonable time to use his option and return the butter.
    3. Same—Reasonableness of time dependent on circumstances.
    
      Held, that the question as to what is a reasonable time is one to be determined from the circumstances attending the case.
    4. Same—Excuse for delay—Question of sufficiency is for the jury.
    The plaintiff did not return the butter promptly after he discovered that it was in an unsuitable condition, but there were circumstances tending to show an excuse for the delay. Held; that the question as to whether the return was made in a reasonable time was dependent on the sufficiency of the excuse for the delay, and that this was a question for the jury to determine.
    Appeal from a judgment of the Columbia county court, entered upon a verdict in favor of the plaintiff. The action was brought in the justice’s court in which the plaintiff also had judgment, from which an appeal to the county court was taken.
    
      John Cadman, for app’lt; Hawver & Cochran, for resp’t.
   Landon, J.

The defendant December 19, 1885, brought some butter to the plaintiff’s store to sell. The plaintiff upon inspection of the butter questioned its quality and hesitated to purchase it, The defendant thereupon insisted upon his taking it and agreed, “that if the butter did not suit he would take it back; he wanted plaintiff to try it.” The plaintiff thereupon took the butter and paid the defendant for it.

The plaintiff did try to sell it to his customers but the butter proved to be unsalable, and this was ascertained in about ten days after its purchase by plaintiff. The plaintiff kept a country store, and defendant, who lived about two miles from the store, had been in the habit of frequenting his store as a customer, but upon the sale of this butter discontinued his visits. On March 2d, following the sale, plaintiff saw defendant and told him the butter was unsalable. May 22d, following, plaintiff returned the butter to the defendant, and soon after brought this action to recover its purchase price. The butter was in a somewhat worse condition when returned to defendant than when received by the plaintiff.

This is not a case of warranty of quality, but of an option given by the seller to the buyer to return the butter and rescind the sale if the butter should prove unsalable. The .plaintiff had the right upon ascertaining the fact of unsalability .within a reasonable time, to use his option to. return the butter within reasonable time. Johnston v. Trask (40 Hun, 415), and cases there cited.

What amounts to a reasonable time, is to be determined from the circumstances. The plaintiff did fail to return the butter promptly after his discovery of its unsalability. But there were circumstances tending to show an excuse for this delay and the question of reasonable time could not be determined without determining whether these circumstances, afforded a sufficient excuse.

We think the question of reasonable time was under these-circumstances one of fact for the jury and not of law for the court. Cross v. Beard, 26 N. Y., 89; Lamb v. Camden and Amboy Co., 2 Daly, 474; Witbeck v. Holland, 45 N. Y., 13.

Judgment affirmed, with costs.

Learned, P. J., and Bockes, J., concur.  