
    The Wolfe Brothers Shoe Company v. J. Bishop.
    No. 14,369.
    (84 Pac. 133.)
    1. Contracts — Sale of Shoes — Dispute as to Quality — Acceptance. Plaintiff’s attempt to sell some of the shoes that were salable while waiting for defendant’s agent to adjust plaintiff’s claim that the consignment was defective held not to amount to an acceptance of the entire lot.
    2. - Sample — Evidence. Evidence being admitted without objection that the shoes were not equal to the sample, it was held proper for plaintiff to produce one of the shoes and point out the defects.
    Error from Woodson district court; OSCAR FOUST, judge.
    Opinion filed December 9, 1905.
    Affirmed.
    
      S. C. Holmes, for plaintiff in error.
    
      Lamb & Hogueland, for defendant in error.
   Per Curiam:

The court is of the opinion that, under all the circumstances of this case, the plaintiff was not obliged to inspect the goods when they arrived; that his paying for them did not amount to an acceptance; and that his delay in returning them was not unreasonable.

The instructions asked, based as they were upon practically uncontradicted testimony, amounted to a virtual direction to the jury to find for the defendant, and were, therefore, properly refused. The instructions given stated the law and were applicable to the facts.

The attempt on the part of the plaintiff to sell some of the shoes which were salable while waiting for the defendant’s agent to appear and adjust the matter did not constitute an acceptance of the entire lot. There was no evidence, as stated in the brief of the defendant, that the agent, Hobson, warranted the shoes. There was evidence admitted without objection that the shoes were not equal to the sample, and in that connection there was no error in permitting the plaintiff to point out the defects of the goods by producing one of the shoes. The testimony of the witness Dobyns was given in rebuttal, and merely for the purpose of meeting assertions made in evidence of the defendant.

The judgment of the district court is affirmed.  