
    Samuel Grabfelder, Respondent, v. Albert G. Vosburgh, Appellant.
    
      Sale on credit—the time runs from the delivery of the goods—when the question of acceptance is one for the jury—oral evidence held to be incompetent where it varied, a'written contract.
    
    Where an order for goods to be subsequently delivered provides that the vendee shall be given four months’ credit, the term of credit dates from the delivery of the goods and not from the giving of the order.
    Where it appears that the goods ordered consisted of a new and expensive brand of whisky which the agent of the vendor, who obtained the order, desired to introduce among the vendee’s customers; that the sale was accompanied by a representation that the goods were of a superior quality; that the goods were not delivered until September, 1899; that the vendor’s agent who visited the village in which the vendee did business about once in two months did not see the vendee on his first visit after the sale and that on his second visit, which was in December, the vendee notified him that the goods were not as they had been represented to be, it cannot be said, as a matter of law, that the retention of the goods by the vendee amounted to an unqualified acceptance thereof, but the question is one of fact for the jury.
    
      Semble, that if the four months’ term of credit had expired before the vendee notified the vendor of his refusal to accept the goods, he would, as a matter of law, be deemed guilty of an unreasonable delay in exercising his right to test the quality of the goods.
    Where the written order for the goods is unqualified, evidence of a verbal agreement between the parties, whereby the vendee was to be liable to pay for only that portion of the goods which he should succeed in selling to his customers, tends to vary the terms of the contract arid is inadmissible in an action brought by the vendor to recover the purchase price of the whisky.
    Appeal by the defendant, Albert G. Vosburgh, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Wyoming on the 22d day of December, 1900, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office'on the 24th day of August, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    
      M. L. Coleman, for the appellant.
    
      John L. Woodworth, for the respondent.
   Spring, J.:

This case was submitted to the jury, but upon their failure to agree the trial court directed a verdict in favor of the plaintiff.

On the 19th day of July, 1899, the defendant gave to the agent of the plaintiff, a wholesale liquor dealer, an order for a cask of rye, the order signed by the defendant reading as follows:

“ Warsaw, July 19, 1899.
“ S. Grabfelder & Co.,
“Louisville, Ky.
“ I have this day ordered through your salesman, Mr. Alex. U. Freiberg, the .following goods:
“ Ship via.
“ 1 cask Old Consolation pure rye, $3.00.
“ Terms 4 months. A. G. VOSBURG,
“ Warsaw, U. Y.”

It will be' observed that by the terms of this order a credit is • given the defendant for four months. According to this testimony the rye (twenty-five gallons) was not received by him until in the month of September. " If the term of credit is to date from the delivery of the goods the action is prematurely brought, as it was commenced on December 30, 1899, and the four months had not then expired. When the court intimated his intention to direct a verdict for the plaintiff the point was raised specifically by the defendant that the action was prematurely brought. This was not a shipping bill sent to the defendant, but it was an order signed by him for goods to be subsequently delivered, and it would seem reasonable that the time of credit was to begin at the time of the delivery of the goods, especially as the plaintiff has not furnished, the date of the invoice. If so, the plaintiff’s cause of action had not matured when he began suit to enforce collection.

The defendant did not purchase any particular cask of rye, but a cask out of a certain kind, and the purchase did not become effective until there was a delivery to him at Warsaw, where he was allowed to test the quality of the liquor. The order contemplated a future delivery, and if the defendant’s version is correct six weeks elapsed before he received the rye. The term of credit implied an opportunity to the defendant to sell some part of the goods to enable him to obtain money to meet his obligation, and it would hardly be fair to hold that the term of credit was running along before the goods arrived. This question was sufficiently raised by the pleadings. (Mack v. Burt, 5 Hun, 28.)

The evidence shows that the defendant did not wish to purchase these goods, but the plaintiff’s agent desired to introduce this brand of liquor into the village of Warsaw, representing that the liquor was of superior quality and also stating in substance that if it did not prove to be satisfactory there would be no sale. The defendant testified that the goods were of poor quality and after repeated attempts he was unable to dispose of them to his customers.

The plaintiff’s selling agent was in the habit of going to Warsaw about once in two months. On his first visit after this sale he did not see the defendant. The second time he was there, which was in December, the defendant told him the goods were not as represented, and he had only been able to sell about three gallons. The trial court concluded that the retention of the goods by the defendant amounted to an unqualified acceptance and that on that account the defendant was liable. We think that, under the circumstances of this case, the court below adopted too rigid a rule. It was for the jury to say whether more than a reasonable time intervened the receipt of the goods and the notification given the plaintiff’s selling agent that the goods did not meet the representations upon which they were claimed to have been purchased. That is, whether they had been actually accepted by the defendant or not.

It .is to be observed as pertinent to this aspect of the cáse that the liquor was a new brand and above the ordinary price; that the motive influencing the taking of the order by the plaintiff’s agent was to introduce it among the defendant’s customers for the purpose of securing a permanent trade for it in the village of Warsaw. The defendant and his bartenders testified to the unavailing efforts they made , to sell the liquor to their customers. Again, the agent came to the defendant’s place of business infrequently; and in the light of these circumstances we cannot say, as matter of law, that the defendant retained the liquor unreasonably before apprising the plaintiff that it was not as represented. Ordinarily what constitutes a reasonable retention of goods for examination and inspection is a question of fact. (Pierson v. Crooks, 115 N. Y. 539, 551; Lang v. Severance, 28 N. Y. St. Repr. 532; Benjamin Sales [7th Am. ed.], § 700 et seq.)

If the term of credit had expired before the defendant notified the plaintiff of his. declination to accept the goods, probably that would have been, as matter of law, an unreasonable delay in arriving at' the decision. Where a specific term of credit is extended upon a sale of goods accompanied by the representation that they are of a superior quality or of a certain grade, the opportunity of examination should be taken advantage of before the bill becomes due. The credit implies that the conditional sale is to become absolute at least by the time, of the maturity of the account. v

The defendant contends that there was a verbal agreement whereby he was to sell whatever of this liquor he could to his customers and was only to be liable for the amount so sold. The order, as will be observed, is unqualified, and we are inclined to the view that-the proof which the defendant sought to offer upon this branch of the case tended to vary the terms of the- contract. The evidence did not establish an independent or collateral agreement.

The judgment and order should be reversed and a new trial ordered.

All concurred.

- Judgment and order reversed, and new trial ordered, with costs to the appellant to abide event.  