
    Lester Jacobs, Resp’t, v. John Day et al., App’lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed November 6, 1893.)
    
    1. Sale—Sample.
    Plaintiff's assignor called at defendants’ store to purchase raisins and was shown a sample by one of the defendants, who assured her that the rest corresponded thereto. A day or so after she called again, when the salesman opened one box, which he showed her, but refused to open any more, as he had no time to do so. She bought 103 boxes, but on examination found twelve of them to be inferior to the sample. Held, that the sale was one by sample; that plaintiff was entitled to a reasonable time after delivery to examine the goods before acceptance would be presumed, and upon discovering their inferiority to rescind the sale and return them.
    
      2. Accobd and satisfaction.
    Upon discovering that the contents of the boxes was inferior to the sample plaintiff’s assignor tendered a return of them, which was refused, and a portion of the purchase money was tendered, which she accepted. Held, that this did not constitute an accord and satisfaction, as upon a refusal to accept a return plaintiff’s assignor had no alternative but to keep the goods in her possession.
    3. Same—Pleading.
    The defense of accord and satisfaction is an affirmative one, and should be pleaded.
    Appeal from a judgment for plaintiff recovered in the district court in the city of New York for the second judicial district.
    Action to recover return of the balance of the purchase money paid by plaintiff’s assignor on the sale of merchandise by sample, the sale having been rescinded by the buyer on the ground that the bulk delivered failed to correspond to the sample shown at the time of the sale.
    
      S. Feuchtwanger, for resp’t; Chas. W. Dayton, for app’lt.
   Bischoff, J.

The circumstance, merely, that at the time of the sale a sample was produced is not sufficient to constitute the sale one “ by sample.” Hargous v. Stone, 5 N. Y., 73 ; Beirne v. Dord, id., 95. To have that effect it must be fairly inferable from the evidence that the parties mutually understood, or at least that the seller intended the buyer to understand, that the bulk of the commodity sold should in kind and quality be equal to the sample shown. Beirne v. Dord, supra ; Ames v. Jones, 77 N. Y., 614. That a portion of the bulk of the goods sold was examined by the buyer at the time of the sale is not conclusive that the sale was not “ by sample.” Am. & Eng. Ency. of Law, Yol. 10, p. 167; Gallagher et al. v. Waring et al, 9 Wend., 20. Neither is a sale conclusively one “ by sample ” because at the time of the sale a sample was produced and it was inconvenient or impracticable to examine the bulk of the goods sold. Beirne v. Dord, supra. These circumstances, however, should be duly considered in arriving at a conclusion that the sale was or was not one by sample.” Oases above cited. The question therefore is in every case one of the intention of the parties to be determined from the evidence.

Plaintiff’s assignor testified that she called at, defendants’ place of business to purchase raisins; that one of the defendants opened a box from which he took a sample which he showed her; that she inquired of him if the remainder of the raisins corresponded to the sample shown and that he assured her that such was the fact; that a day or two thereafter she again called at defendants’ place of business and met one Luther, a salesman ; that she asked Luther to show her the raisins ; that the latter opened one box which he exhibited to her and refused to open any other on the plea that he had no time; that she thereupon agreed to purchase the lot, which consisted of 103 boxes, and paid twenty dollars on account of the purchase money.

Plaintiff’s, assignor further testified that thereafter she paid thirty dollars more; that fifty boxes of raisins were delivered to her; that she at once examined a dozen of the boxes delivered; that their contents were inferior to the sample shown and the one box opened at the time of the sale; that on the next day succeeding the delivery she tendered return of the fifty boxes to defendants and refused to accept the remainder; that defendants refused to accept return of the raisins, but returned her twenty dollars of the fifty dollars which were paid by her on account of the purchase money. Henry M. Day, one of the defendants, and Luther, the salesman, testified to a different version of the facts alleged to have transpired at the time of the sale, but as it was the province of the trial justice to determine the facts upon conflicting testimony we must, for the purposes of this appeal, assume the facts to be as plaintiff’s assignor testified.

The production of a sample, the assurance of one of the defendants that the bulk of the raisins corresponded to it, the demand by plaintiff’s assignor to be permitted to examine the bulk, and that such examination would have entailed the necessity of opening upwards of one hundred boxes, are facts which, taken in connection with the further fact that defendants’ salesman refused to accord plaintiff’s assignor an opportunity to examine more than one box, reasonably lead to the inference that it was intended at the time of the sale that plaintiff’s assignor should rely on the sample shown, and her testimony indicates that by force of cir•cumstances she did so. Within the cases hereinbefore cited the :sixle to her must, therefore, be deemed to have been one “by sample.” Such a sale is upon an implied condition precedent that the bulk of the goods sold corresponds to the sample. The buyer is entitled after delivery to a reasonable time within which to examine the bulk before acceptance will be presumed, and upon breach of the condition he may rescind the sale and offer to return the goods. Benjamin on Sales, § 895; Osborn v. Gantz, 60 N. Y., 540. _ ■

_ It was not necesssary for plaintiff to show that the contents of •every box delivered did not correspond to the sample. It was sufficient that a substantial quantitjr of the raisins delivered was deficient in that respect to justify the rejection by plaintiff’s assignor of all, since she could not be compelled to accept part delivery in performance of the contract of sale on defendants’ part. .Benjamin on Sales, § 690.

It appears that upon the tender of return of the fifty boxes ■delivered defendants refused to receive them that one of the defendants told plaintiff’s assignor to remove them, which she did, and that defendants at the same time returned to her twenty dollars of thfe fifty dollars paid on account of the purchase money, which she accepted. These facts, it is contended for appellants, constitute an accord and satisfaction. To support such a plea, however, every element of a valid agreement to relinquish the remainder of the claim must be-present. Lawson’s Eights, Eemedies & Practice, vol. 5, p. 4228, § 2567 ; Am. & Eng. Ency. of Law, vol. I, p. 94; Parsons on Contracts, vol. 2, p. 681, § 4, vol. 1, p.8, § 3 ; Kromer v. Heim,, 75 N. Y., 574; Fuller v. Kemp, 40 St.Rep., 672 ; 138 N. Y. 231, 235; 52 St. Rep., 342. The evidence in the present -case is palpably insufficient to establish the aggregatio mentium, since upon defendants’ refusal to accept return of the raisins delivered plaintiff’s assignor had no alternative but to keep them- in her possession, and that fact alone, therefore, is inconclusive of her voluntary acceptance of the goods which appellants urge as part consideration for the alleged agreement of accord and satisfaction. The defense, in any event, is an affirmative one and should have been pleaded. It is too late to urge it for the first time on appeal.

Exceptions to rulings respecting the admission or exclusion of evidence are not urged as presenting grounds for reversal. The judgment should, therefore, be affirmed, with costs.

. Gtegerich, J., concurs.  