
    No. 391
    LAMBORN v. BENDER
    Ohio Court of Appeals, Cuyahoga County
    No. 4205.
    April 9, 1923
    This opinion has not been published except in Abstract
    SALES — (1) Tender- of goods unnecessary' when buyer after inspecting goods finds them unsatisfactory.
    Error to Cuyahoga Common Pleas;
    affirmed
    Attorneys — Garfield, McGregor • & Baldwin, for Lamborn; F. B. Gott and W. L. Fiesinger, for Bender.
   VICKERY, P. J.:

Vickery, Sullivan and Levine, JJ.

Epitomized Opinion

Lamborn and Bender entered into a contract for the sale and delivery of twenty-five tons of Standard Fine Granulated Sugar f. o. b. New York. The goods were shipped to the order of Lamborn and a bill of" lading, with a draft for the purchase price attached, was sent to a bank at Sandusky with orders’ to notify Bender. He paid the draft and after examining the sugar found that it was ’far inferior to the quality ordered and of no use to him. He thereupon notified Lamborn of his refusal to accept it and asked “what disposition he should make of the sugar.” No satisfactory arrangement was made and Bender recovered in the lower court. The only error complained of is that this’action’ of Bender amounted to a rescission of the contract and that when he’ paid the draft the possession of the property vested in Bender and that before a rescission of, the contract could be completed, he must tender back the goods. Held by Court of Appeals in affirming for Bender: ■ . ■

-1. We think the case at bar comes squarely within the case of Rhinestrom v. Steiner, 69 O. S. 452, where it was held that -where a party under contract to deliver.. certain specific goods delivers to the buyer goods of.a kind not conforming to the contract -and upon examining them: and- without delay the buyer-informs the seller ;pf, tliat-fact, no tender is required. If.is sufficient if thpvbuyer- gives, the'seller ..clearl-y to understand that he refuses to accept the goods. This-situation is provided for in GC. 8420. (See 19 Abs. 376.)  