Our attention has been called to a law passed by the New Jersey Legislature in 1907, from which the following is quoted:

“Where the seller delivers to the buyer the goods he contracted to sell mixed with goods of a different description not included in the contract, the buyer may accept the goods which are in accordance with the contract and reject the rest, or he may reject the whole.”

We are receiving inquiries as to the responsibility of a customer where he had used part of a shipment of lumber of one description, the customer claiming the statute above quoted permitted him to use such of the shipment as was up to grade and reject the balance. Commenting on the law above referred to where a shipment contains lumber under one description it would seem to be the law that if the consignor delivers to the consignee the goods contracted for of the same description included in the contract, the debtor, with his right of inspection must either reject or accept, and if the consignee does any act by which it could be inferred that he is exercising the right of ownership of any part of the merchandise so shipped and delivered, we believe he is liable for the entire amount of lumber shipped and received. He cannot take out what he wants of the order and reject the balance.

The New Jersey law covers mixed shipments, for instance, in a shipment of barn boards, siding and moulding, the buyer would have the right to accept either of these items without prejudicing his claim, or waiving his privilege of rejection on the other two, but where a straight car of barn boards is ordered the buyer is not privileged to use a portion of them and reject the balance as not being up to contract.

Opinion No. 81.