Question.—A, a shipper in the South, ships to B, in New York, a carload of lumber at a price based on delivery f. o. b. New York City. The material is offered to B on a lighter at the agreed upon point of destination, and B, on inspecting it, comes to the conclusion that it is not what he ordered, and refuses to accept it, simply telling the railroad that the material is not what he ordered, and refuses to unload. B does not notify the shipper, A, and the latter knows nothing of B’s rejection or refusal to accept until about a month later, when he receives a notice from the railroad that B has rejected the material. A claims that B should have notified him immediately by mail or telegram that the material was not what he ordered, but B claims that he was not compelled to do so and that the fact that the railroad did not notify A until a month after was no concern of his. Is he right?

Reply: There is no rule of law known to us which would have required the buyer to notify the seller of his determination not to accept the goods in this case. If the buyer had taken the goods from the carrier he would have been bound to notify the seller of this subsequent rejection. If delivery had been made at the shipping point instead of f. o. b. destination, so that the carrier should have been agent of the buyer and not of the seller, the buyer’s duty to give notice would have been the same. As the case actually stands it is this: The seller himself or his agent, which amounts to the same thing, tenders the goods to the buyer and the buyer rejects them without having taken them into his custody. The seller or his agent immediately knows that they are rejected. How could notice add anything to that knowledge? If it is the seller’s agent who knows, and if the seller himself does not know, that is because the seller has not given proper instructions to his agent or because the agent has failed to follow them if they were given. In neither case is the buyer to blame. He has notified the seller’s agent that the goods are refused; that is all he can be required to do. If the refusal is not justified the seller has his remedy, of course. If it was justified the seller has sufficient notice of it. Our correspondent says the seller complains because the buyer did not notify him “immediately by mail or telegram that the material was not what he ordered.” That is absurd in any case. The seller knew as well as the buyer, and knew before the buyer did whether the goods sent were such as the buyer had ordered or not. Why should he be notified of a fact that he knew already.

Opinion No. 88.