It is a daily occurrence in the lumber trade that a purchaser finds some objection to the quality or quantity of lumber shipped to him on order. Frequently in such case, without any communication with the shipper a purchaser feels warranted in using such portion of the lumber as suits him, relying on an assumed right to lay aside the balance for the account of the shipper, with the idea that he may reject it entirely or obtain some reduction in the price. The general rule laid down by the courts in cases of this sort is as follows: Where the vendee of goods, purchased without warranty, after full opportunity for an inspection, accepts them without objection when delivered, he cannot, in an action against him to recover the price defend upon the ground that they did not conform to the contract of sale.—(Smith vs. Coe, 170 N. Y. 162.)

If the purchaser, upon the receipt of the goods, makes objection to the quality, but, without the express permission of the seller, uses a portion, it is held that by so doing he tacitly waives his objection and his acts amount to an acceptance of the entire lot.—(Coplay Iron Co. vs. Pope, 108 N. Y. Appeals, 232.)

In the above case, which involved a transaction in pig iron, the purchaser complained of the shipment and upon being sued for the purchase price set up a claim for damages by reason of the alleged defective quality and it was held “where after discovery or opportunity to discover any defect in goods delivered under an executory contract of sale, the vendee neither returns or offers to return the property nor gives the vendor notice or opportunity to take it back, in the absence of a collateral warranty or agreement as to quality, he is conclusively presumed to have acquiesced and may not thereafter complain of the inferior quality.”

When a car constitutes but a portion of the order, which was in the nature of one contract for a number of cars, the purchaser cannot object to the quality and retain the initial car and decline to receive the balance of the shipment. The contract of sale being an indivisible one in law, the purchaser by his acceptance of the initial shipment and failure to return it, is conclusively presumed to have acquiesced in the quality of the lumber offered him and waived any objection to the remainder of the shipment order provided it is the same as the first car.

In the case of Weil vs. The Unique Electric Device Co., Reported in 39 Misc. (New York 1902), page 527, a vendor sought to recover the stipulated purchase price of certain merchandise sold to the defendant, consisting of some 3,000 electric batteries, of which 1,000 were delivered and paid for, but the purchaser refused to accept the balance on the ground that the quality was not according to the agreement. The court held that the contract of sale was an entire one and it was the duty of the purchaser to receive balance of the order, provided they were of similar quality to the lot already delivered. That when the purchaser received the first lot and found them unsatisfactory, it was its duty to rescind the sale and return, or offer to return the goods; and its failure so to do was an acquiesence on its part of the quality of the goods in question.

The above discussion leaves for further consideration the question when a purchaser though bound to take goods and chargeable with their full price, may hold the seller liable for damages for breach of express or implicit warranty.

Opinion No. 102.