See DIVISIBLE CONTRACTS; BREACH; PER FORMANCE.
Where the seller is under a contract to sell goods to the buyer and ship them to him, usually the seller has thereby fulfilled all his obligations under the contract, but where bills of lading are issued by the carrier, the question is necessarily affected by the rules governing such documents. See Bums OF LADING.
Buyer's rights. 1. Right to examine the goods. The buyer is entitled to examine the goods in order to decide whether he will be come owner, and until the examination is completed, or waived, the property will not pass ; McNeal v. Braun, 53 N. J. L. 617, 23 Atl. 687, 26 Am. St. Rep. 441. A refusal on the part of the seller to allow opportunity for inspection justifies the buyer in refusing to fulfill the contract ; Charles v. Carter, 96 Tenn. 607, 36 S. W. 396.
Where, by the terms of the bargain, the property was to pass before delivery to the buyer, "the buyer has a reasonable time aft er the delivery in which to examine the goods, and, if they are not of a kind `and quality ordered, he may then refuse to accept them, and thereby rescind the contract ; but this right does not prevent the title from passing nor a recovery by the seller in an action for goods sold and delivered, if in fact they do conform to the terms of the contract ; Brig ham v. Hibbard, 28 Ore. 386, 388. Where the property is transferred and the goods paid for without opportunity for inspectiqn, in such cases the right of inspection is that of a condition subsequent, enabling the buyer to return the goods of which he has already be come owner, and to recover money which he has already paid ; Well v. Stone, 33 Ind. App. 112, 69 N. E. 698, 104 Am. St. Rep. 243. Where goods are taken into the buyer's pos session and examination is deferred for his convenience until an indefinite time in the future, title pisses, subject to .the right of the buyer to throw back the title if the goods are not what the bargain required ; Doane v. Dunham, 79 III. 131. If it is necessary, in order to determine whether goods conform to the contract or order, the buyer may test them even though the test involves the de struction of a portion of the goods ; Lucy v. Monflet, 5 H. & N. 229 ; Philadelphia Whiting Co. v. Lead Works, 58 Mich. 29, 24 N. W. 881. A reasonable time is allowed for inspection but if the buyer fails to inspect them, he thereby waives the condition, and is there after to be treated as having assented to take or keep title to the goods. Since it is the
duty of the seller to afford opportunity for examination, it would seem that the seller must bear the expense of affording such op portunity, but the expense of the inspection itself is another matter. The buyer need not inspect unless he likes, and if he chooses to do so he must bear the cost ; Lincoln v. Gal lagher, 79 Me. 189, 8 Atl. 883. If on inspec tion, however, it appears that the goods were not what the contract called for, it would seem to be a proper element of damage in an action against the seller for breach of his contract that reasonable expense had been incurred in examining the goods and testing their insufficiency. There are many decisions to the effect that a carrier must allow the buyer a reasonable opportunity to inspect them, and this right of inspection is a con dition precedent to the obligation to pay freight; Old Colony R. Co. v. Wilder, 137 Mass. 536 ; Sloan v. R. Co., 126 N. C. 487, 36 S. E. 21; Union R. R. & Transp. Co. v. Riegel, 73 Pa. 72. The place of inspection is prima facie the place where the goods are delivered to the buyer ; Holt v. Pie, 120 Pa. 425, 440, 14 Atl. 389. By the Sales Act, the buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him, and he does any act in re lation to them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them. But the acceptance of the goods does not indicate a release of liability for defective performance; Phillips & Colby Const. Co. v. Seymour, 91 U. S. 646, 23 L. Ed. 341; Frith v. Hollan, 133 Ala. 583, 32 South. 494, 91 Am. St. Rep. 54 ; Best v. Flint, 58 Vt. 543, 5 Atl. 192, 56 Am. Rep. 570. However, in some jurisdictions, acceptance' of title waives right of damages for inferior quality.; Staiger v. Soht, 191N Y. 527, 84 N. E. 1120; Miller v. Moore, 83 Ga. 684, 10 S. E. 360, 6 L. R. A. 374, 20 Am. St. Rep. 329; Jones v. McEwan, 91 Ky. 373, 16 S. W. 81, 12 L. R. A. 399.