
    William H. Plumb, Appellant, v. Edwin A. Bridge and John W. Souter, Respondents.
    Third Department,
    November 11, 1908.
    Sale — refusal to allow inspection — recovery of deposit paid by buyer — purchase by buyer on sale made for his account — evidence — inspection and quality of goods.
    Where a seller agrees to ship to a buyer vegetables of a certain quality at a specified price f. o. b. at the point of shipment and to obtain as low a freight rate as possible.for the buyer, the latter is entitled to a reasonable opportunity to inspect the goods before paying the balance of the purchase price, especially where he has been notified that some of the goods shipped do not comply with the order.
    Where the seller ships the goods in his own name and refuses to allow the buyer to inspect them on their arrival, there is a breach of said contract and the seller is liable for the deposit paid by the buyer when placing the order.
    In an action to recover such deposit it is no defense that the buyer after being refused an inspection and being notified that the goods would be sold on his account, bought in the goods on such sale through an agent.
    In such action the plaintiff may show that his agent inspected the property before purchasing it and the quality of the goods.
    Appeal by the plaintiff, William H. Plumb, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Franklin on the 8th day of April, 1908, upon a nonsuit granted by the court at the.close of the plaintiff’s evidence upon a trial at the Franklin Trial Term, and also from an order enteréd in said clerk’s office on the 8th day of April, 1908, granting a nonsuit and dismissing the complaint.
    
      Kellas & Genaway [John P. Kellas of counsel], for the appellant.
    
      Fitch & Kiley [Edward A. Kiley of counsel], for the respondents.
   Kellogg, J.:

The plaintiff, at North Bangor, N. Y., ordered from the defendants, at Canastota, N. Y., eight tons of good Danish seed cabbages, trimmed, at ten dollars per ton, and 150 bushels of medium size dry yellow onions in sacks at sixty cents per bushel, and enough good hand-picked winter apples to make up the carload. These prices were f. o. b. Oanastota, shipment to be made to Tupper Lake, or Saranac Lake to stop off at Tupper Lake, the defendants to obtain as. reasonable a freight rate as they could for plaintiff. One hundred dollars was paid in check with the order, and the balance was to. be paid ujDon the arrival of the car.

.Defendants shipped the property in a car to their order to Saranac Lake, and drew a draft upon'the plaintiff for the balance due, with bill of lading attached, which draft was drawn payable at a bank in Malone, some fifty miles distant from Saranac Lake, and notified plaintiff that they had done so. Plaintiff remonstrated by wire that a draft should be drawn payable at such a distant place, as it would take several days to obtain a delivery of the property, and also objected to paying for the property until he had an opportunity to inspect, it and see that he was getting what he had bought. The cabbages were sent untrimmed, or not closely trimmed, and in that respect were not according to contract, and the defendants so notified the plaintiff and proposed to allow him 1,600 pounds for shrinkage on that account. The onions w'ere not sacked..

After plaintiff objected to paying for the property until he could examine it, the defendants sent a man to Tupper Lake to sack the onions and notified the plaintiff that unless he took the property and paid for it they would sell it and hold him responsible for any loss resulting. Thereupon the plaintiff asked one Green o at Saranac Lake to go and inspect the car and purchase the contents at the best price he could. The agent sent by defendants called upon plaintiff and told him that if he would pay the draft they would sack the onions for him as agreed, but plaintiff refused to pay the draft unless he had an opportunity to inspect the property before payment, which inspection was not accorded' him. Thereupon the agent offered the property for sale at Saranac Lake, and Greeno purchased the same for $215. The original contract price to the plaintiff was $292.50. Plaintiff brings this action to recover back the. $100 paid by him, upon the ground that the defendants failed to perform their contract, and asks damages on account of .such hon-performance.

This was in substance an executory contract of sale, the plaintiff never having seen the property bought and the contract not relating to any particular property. The defendants undertook to furnish him the property as ordered, of good quality, and the plaintiff-was entitled to a reasonable opportunity for inspection before lie' paid therefor. It is not very material that the car was shipped to • Saranac Lake in the name of the defendants, except so far as it tends to show that the defendants intended to keep the possession and control of it until paid for and that the right of inspection still continued in the plaintiff. The defendants had the right to ship the property in such a manner that they would receive the money at the time they parted with control, and the drawing of a draft, with a bill of lading attached, if in the ordinary course of business and accompanied with a right of inspection, was not an unreasonable precaution for defendants to take, and the plaintiff was not justified for that reason in refusing to accept.

' It does not appear whether there were banks at Saranac Lake through which tlie draft might be drawn, or whether the bill of lading might have been so arranged that payment could be made to the railroad company when the car arrived. We cannot, say from the record whether it was in the usual course of business to draw a draft upon a bank fifty miles distant with reference to property of such a perishable nature at that time of year. The plaintiff was justified in refusing to accept the property as shipped to him without an opportunity to examine it. He was notified by the defendants that in two respects the order was not complied with, in that the cabbages were not trimmed and the onions not sacked. And these two omissions emphasized the propriety at least of an inspection of the property before payment.

By shipping the property in such a manner and refusing the plaintiff an opportunity to inspect it before he paid for it, the defendants violated their contract with the plaintiff and became liable to repay him the $100 which he had paid. The transaction with Q-reeno is not of great importance except as it tends to show that the plaintiff eventually had the property and, therefore, suffered no damage by reason of the defendants’ failure to deliver it according to the terms of the original contract. The property was purchased by Greeno and he paid the defendants the purchase price, and there is' no reason why they should receive the purchase price and also retain the $100 which -plaintiff had paid them upon the contract which they refused to perform. ■

The record does not justify the contention that by trick the plaintiff refused to take the-property under the contract so that lie could buy it at a less-price through Greeno. Plaintiff claimed the defendants had . violated their contract; they claimed he was the óné in default and that they were selling the property and would charge hiin With.the difference in price.- The plaintiff had a right to protect himself by seeing that the property brought a fair price, and he also had- a right to obtain the property if the defendants had violated their contract, so that he could • have it to fulfill the contracts which he had .made relying upon- his contract with the defendants.

These considerations require a reversal of the judgment. As a new trial is to be had it is proper to. refer to two erroneous rulings so that they may not occur upon a second trial. The plaintiff had the right to show that Greeno inspected the property beforé lie purchased the. same: This bore-Upon the plaintiff’s good faith in the matter and perhaps liad a bearing upon the quality of the property. The plaintiff should. have been permitted' to show the quality of the property in, the Car, for if the defendants had not sent as good a quality as they agreed, plaintiff clearly had the right to refuse to accept upon that ground. . The judgment should, therefore, be reversed and a new trial granted, with costs to the appellant to abide .the event. . .

All concurred.

Judgment and ■ order reversed and new trial granted, with Costs to appellant to abide event.  