was for $5,000. It appears that before the 14th of March, 1884, he had placed it in the hands of De Witt A. Gleason, and given him written authority to sell and dispose of it; "and for his services in the matter, as heretofore rendered," agreed to allow him one-half of the net proceeds received by him on its sale. Mr. Foster was disappointed with Gleason's management of the business, and on the 14th of March withdrew by notice in writing the authority so conferred, and required the return of the bond and mortgage. This was served upon Gleason. There is an obvious and natural connection between this revocation and the requirement in the codicil of the same date. By subsequent transactions, in which Gleason and Lee, the husband of Mrs. Lee, participated, the church property was sold, and such an arrangement of the church debts made as enabled Mr. Lee to realize a sum amounting, as estimated by the testator, to $3,000, and all of that he attributed to the control by Lee and Gleason of his $5,000 mortgage. Something, at least, was realized; and whether the testator is mistaken in the amount or not is quite immaterial. Enough had taken place between himself and those persons, whether well interpreted by him or not, to account for any change he might choose to make in the direction of his gifts. But, if unaccounted for, that change would present no ground for contest, unless brought about by fraud, or de

thereof, and only the remainder paid by my executor from my estate; and that if any other person shall make or present a claim which shall have been assigned by said De Witt or Clark Gleason, that the amount thereof shall likewise be deducted from the legacy bequeathed in my will to the person making such assignment." Clark Gleason, thus named, was also a son of John R. Gleason, and consequently one of the four children referred to in the will. By the second codicil the testator ratified the will, except as to the children of John R. Gleason. As to the provision in their favor he says: "I hereby revoke and annul the bequest mentioned in third division or paragraph of my said will, whereby, in said will, I bequeathed to each of the four children of my nephew, John R. Gleason, the sum of five hundred dollars, and hereby revoke all bequests and devises and provisions in my said will in favor of the children of said John R. Gleason, and hereby will that said two thousand dollars mentioned in said third division shall go into the residuary fund or bequest mentioned in said will, and to be disposed of as therein mentioned, and as the rest and residue' is therein devised and bequeathed and directed." This change led to the inquiry which resulted in the opposition before the surrogate. Of itself, it seems a natural sequence of the apprehension manifested in the will, and the caution which dictated the provision in the first codicil. By the will the gift was accom-ceit, or an influence unfairly exercised, so panied by a proviso and a penalty, and by the first codicil other safeguards are interposed between the possible adverse pecuniary claims of his beneficiaries, either directly or by their assigns. It is not denied that the testator was at all these times of sound mind; and he was, according to the evidence, perfectly competent to exert and direct its operations. Certainly, the various clauses of the will and codicil indicate a firm determination to provide against certain apprehended or possible claims or contentions on the part of those persons to whom he refers. They are the words of a man acting advisedly, and guarding against a state of things not then fully appearing, but which after his death might be made to confront his representatives. In (Court of Appeals of New York. Oct. 8, 1889.) fear of that, they might naturally have been written.

that the words, although the words of the testator, represented the mind of another. There is no evidence in the record which, however viewed, would permit that conclusion, or be deemed sufficient in law to defeat a testament. The finding of the surrogate to the contrary, and which led to his decree, is, as we understand the testimony, without support. The judgment of the general term is to that effect, and it should, we think, be affirmed, with costs to be paid by the appellants. All concur.

(115 N. Y. 539) PIERSON et al. v. CROOKS et al.1

SALE-DELIVERY-PAYMENT.

1. Where, by an executory contract of sale, the vendor undertakes to deliver iron of specific quality on board steamers at Liverpool to be sent to the vendee at New York, in the absence of express contract in regard thereto, the vendee's right New York, and the carrier is not his agent to acof inspection continues until the iron arrives in cept the iron as corresponding to the contract.

The contention of the appellant is that fear of another sort actuated him; that his mind was not free, but moyed by fear or fraud or influence, or fear and fraud joined. What his mind was is easily discoverable by circumstances, and we find nothing whatever to 2. Where part of the iron is delivered in three show that the change was either an unnatural shipments, and each lot is inspected within ten days after its arrival, and the vendor notified of one, or contrary to his intent. By an earlier the rejection of the whole one month after the arwill (of 1879) he had given to the four chil-rival of the first shipment, the delay in inspection dren $2,000 to be divided between them. The same sum, its division more specifically provided for, was given by the will of December, 1883, but qualified by the condition, already recited, in respect to a surrender by De Witt A. Gleason of the Methodist Church mortgage. It belonged to the testator, and

and rejection not being so great as to be held ununreasonableness is one of fact, and the referee's reasonable as a matter of law, the question of its finding thereon concludes this court from re-examining such question.

the vendee shall pay for the iron upon receipt 3. Where it is stipulated in the contract that

1Affirming 42 Hun, 571.

of the shipping documents, the making of payments, upon the demand of the vendor, after receipt of the shipping documents, but before inspection of the iron, and the payment of duties. thereon as required by the customs rules, do not conclude the vendee from denying an acceptance of the iron; nor will the doctrine of voluntary payments apply to his recovery of the money so paid.

4. A contract for the sale of two kinds of iron, -sheets and hoops, distinct in character and in price, to be delivered in separate shipments, is not such an entire contract as that acceptance of the sheets will preclude the vendee's rejection of the hoops.

Appeal from supreme court, general term, first department.

præsenti of specific, identified, and existing merchandise.

The main controversy relates to the claim of the plaintiffs to recover back duties and expenses, etc., paid by them in New York on the hoops shipped by the defendants at Liverpool, amounting to $2,501.69, and the further sum of $3,229.78 paid on the contract for the purchase of the hoops. The claim is put on the ground that the quality of the hoops did not correspond with the contract, and that they were greatly inferior and unmerchantable, and were rejected for that reason by the plaintiffs. The fact that the hoops were of a greatly inferior quality is not now controverted. The referee so found, and also that they were so defective as to be unmerchantable. The defendants did not seek

Action by Henry L. Pierson and others against Robert Crooks and others to recover money paid on certain iron which defendants contracted to deliver to plaintiffs, and which was not of the quality specified in the con- to review this finding at the general term; tract. Defendants appeal from a judgment of the general term modifying and affirming a referee's judgment for plaintiffs. John L. Hill, for appellants. James C. Carter, for respondents.

and, instead of incorporating into the case the evidence on the subject, they inserted a statement that they do not question, on the appeal, the finding of the referee, or that the actual quality of the boops was not equal to "WI W" iron. The defendants, while adANDREWS, J. The contract was between mitting the inferior quality of the iron, rethe plaintiffs, importers and dealers in iron sist the recovery had by the plaintiffs on in the city of New York, and the defendants, the grounds-First, that they delivered the engaged at Liverpool, Eng., in the business iron "on board" steamers at Liverpool, acof buying and selling iron manufactured by cording to their contract, and that the other persons, and having an agency in the plaintiffs were bound then and there to incity of New York. The contract was inspect the iron and ascertain its quality, and writing, entered into in the city of New reject it if it was not according to contract, York, for the future delivery by the defend- but, not having done so, this was in law ants to the plaintiffs of two descriptions of an acceptance at Liverpool which precludiron,-hoops and sheets; the quantities, qual-ed them from subsequently questioning the ities, and prices of each description being quality or rejecting the iron; second, that, specified. The iron was not then in exist- if the right of inspection and rejection might ence, or, if in existence, was not identified; have been exercised after the iron reached and it was contemplated that it was to be New York, the plaintiffs did not act with thereafter manufactured according to speci-sufficient promptness, and lost the right by fications to be furnished by the plaintiffs. The words "immediate specification" related primarily to the sizes and gauges of the iron. The plaintiffs, however, in their specifications, directed that the iron of each description should be sent forward in three or four separate shipments, and that shipping documents should be sent with each shipment; and the defendants acceded to this direction. By the contract the defendants were to deliver the iron "free on board" at Liverpool, and the plaintiffs were to pay for it by bills of exchange at 60 days on delivery to them of the shipping documents in New York. The words are: "Payment by 60 d | St. Bl. exchange against shipping documents here." The quality of the hoops is stated in the contract as "WIW, or equal;" and of the sheets, 100 tons "W I W, or equal," and 50 tons "R G." The letters used designate brands of iron well known to the market. The iron shipped was none of it "W I W" iron. It is conceded on both sides that the contract was executory, and not executed, and that the rights of the parties are governed by the rules which apply to a contract to sell and deliver in the future a commodity to be procured by the vendors, as distinguished from a sale in

delay, and also that, by paying for the iron after it reached New York, they concluded themselves from subsequently asserting that there had been no acceptance, the act of payment being, as is insisted, wholly inconsistent with such claim; third, that the contract was entire and indivisible, and that the plaintiffs, having accepted and paid for the sheets, could not reject the hoops.

There is no dispute as to the rule of law touching the rights of parties under an executory contract for the future sale and delivery of goods of a specified quality, in the absence of express warranty. The quality is a part of the description of the thing agreed to be sold, and the vendor is bound to furnish articles corresponding with the description. If he tenders articles of an inferior quality, the purchaser is not bound to accept them; but, if he does accept them, he is, in the absence of fraud, deemed to have assented that they correspond with the description, and is concluded from subsequently questioning it. This imposes upon the vendee the duty of inspection before acceptance, if he desires to save his rights in case the goods are of inferior quality. There is in such case no warranty of quality which survives acceptance,

and the vendee cannot reject the goods after agent of the vendee to accept the goods as acceptance, or recover damages for inferior corresponding with the contract, although he quality. He can do nothing inconsistent may be his agent to receive and transport with the right of rejection, or do what is only them. The defendants undertook to deliver consistent with acceptance and ownership, iron of a specific quality on board steamers without precluding himself. The mere use of at Liverpool, to be sent to the purchasers at an article on trial may, in some cases, be con- New York. This contract was not performed templated by the parties as a means by which by delivering iron of inferior quality. They the vendee is to ascertain whether it corre-knew, or were bound to know, that the iron sponds in quality with the article agreed to delivered was defective. They selected and be furnished. In such cases, mere use is not purchased the iron; and it was within their inconsistent with a subsisting right to reject power, and it was their duty, to supply iron for cause, and will not constitute an accept-of the proper grade. If they sent forward ance. The general rule is stated in Benjamin on Sales. In section 701 the author says: "The buyer is entitled, before acceptance, to a fair opportunity of inspecting the goods, so as to see if they correspond with the contract;" and in section 706: "When goods are sent to a buyer in performance of the vendor's contract, the buyer is not precluded from objecting to them by merely receiving them; for receipt is one thing, and acceptance another. But receipt will become acceptance if the right of rejection is not exercised within a reasonable time, or if any act be done by the buyer which he would have no right to do unless he were the owner of the goods."

iron of inferior grade, they justly should bear the consequences, and sustain any loss entailed by the non-performance of their contract, unless they guarded themselves by imposing upon the plaintiffs the duty of acceptance or rejection at the port of shipment. It is said that, on the delivery of the iron on shipboard at Liverpool, the title vested in the plaintiffs, and that the vesting of the title in the vendees implies an acceptance, and is inconsistent with the alleged right of inspection and rejection on its arrival in New York. There can be no doubt that, on delivery to the carrier of iron corresponding with the contract, the title would immediately vest in the purchasers, and the iron would thereafter be at their risk; nor is there any doubt of the general rule that de

The rule governing executory contracts of sale has been frequently considered in this state, and applied, under various circum-livery of goods corresponding with the constances. See Sprague v. Blake, 20 Wend. 64; tract is a condition precedent to the vesting Reed v. Randall, 29 N. Y. 361; Gurney v. of the title in the vendee. Read v. Randall, Railroad Co., 58 N. Y. 358. The contention supra. But assuming that the title to the that the iron was delivered and accepted at iron, for some purposes, vested in the plainLiverpool proceeds on the assumption that tiffs on delivery to the steamers, it was, as objection to quality should have been made between the vendors and vendees, a condiat the point of shipment, and could not be tional title, subject to the right of inspection taken after the iron arrived at New York. and rejection for inferior quality on arrival It is manifest that the right of inspection to at New York. The circumstances strongly ascertain whether the iron furnished corre- confirm the view that the parties did not consponded in quality with the contract was of template that the right of inspection should prime importance to the vendees. The qual- be exercised at Liverpool. The contract was ity of the iron was a most material considera- made in New York, and the plaintiffs had tion, and neither party could have contem- no agent in Liverpool. The defendants plated that the vendees were bound to accept shipped the iron on steamers selected by iron defective in quality. When and at what themselves. They gave the plaintiffs no noplace the right of inspection was to be exer- tice in advance of the times of shipment, or cised was not definitely fixed by the contract. by what steamers the shipments would be The intention of the parties, when ascer- made, or at least no notice in time to enable tained, is to govern. They might have pro- the plaintiffs to exercise the right of inspecvided that the inspection should be made tion at Liverpool. The plaintiffs, after areither at Liverpool or at New York. The rival of the first shipment by the Germanic, contract is silent on this point; and the de- rejected the hoops on board for defect in qualfendants insist that, in the absence of ex-ity; and the defendants' agent in New York, press words, the law ascertains and fixes the intention that examination should be made at the place where the defendants were to deliver the iron, to-wit, at Liverpool. We are, however, of opinion that where goods are The ordering of goods of a specific quality ordered of a specific quality, which the ven- by a distant purchaser of a manufacturer or dor undertakes to deliver to a carrier, to be dealer, with directions to ship them by a carforwarded to the vendee at a distant place, to rier, is one of the most frequent commercial be paid for on arrival, the right of inspec- transactions. It would be a most embarrasstion, in the absence of any specific provision ing and inconvenient rule-more injurious in the contract, continues until the goods are even to the dealer or manufacturer than to received and accepted at their ultimate des- purchasers-if delivery to the carrier was tination; and that the carrier is not the held to conclude the party giving the order.

while not assenting to the fact that they were inferior, said they would consider and examine into it, but made no claim that the objection came too late.

from rejecting the goods on arrival, if found | time after the 16th of April, and of the Chesnot to be of the quality ordered. A similar ter hoops any time after April 20th, and that question was considered in the case of Pope the postponement of examination was attribv. Allis, 115 U. S. 363, 6 Sup. Ct. Rep. 69, utable to reasons of business necessity or and it was there held that the mere delivery convenience of the plaintiffs. It was shown of goods under an executory contract by the that it was not the custom in New York for vendor to the carrier appointed by the vendee purchasers to examine goods coming by sea did not necessarily bind the latter to accept upon the dock, but to postpone examination them, and that on arrival the purchaser has until they were removed to their stores. It the right of inspection and rejection, if they is the duty of the purchaser to act promptly did not conform to the contract. It is the in making an examination of goods sent upsettled rule that a carrier, unless specially on his order, to see whether they comply authorized, is not the agent of a vendee to therewith, and to give prompt notice to the accept goods so as to validate a verbal con- vendor of their rejection, if found defective, tract under the statute of frauds. Blackb. if he intends to avail himself of that remedy. Sales, 22; Allard v. Greasert, 61 N. Y. 1, It was said by Lord ELLENBOROUGH in and cases cited. I do not perceive that the Fisher v. Samuda, 1 Camp. 190, that "it was agency should be considered more extensive the duty of a purchaser of any commodity, in the case of goods delivered under an exec- immediately on discovering that it was not utory contract, where no question of the according to order, and unfit for the purpose statute arises. An examination by carriers intended, to return it to his vendor, or give of the quality of the goods would be in most him notice to take it back." Similar lancases impracticable. The first ground upon guage was used by the same judge in Hopwhich the defendants sought to defeat the ac-kins v. Appleby, 1 Starkie, 477; and in tion cannot, we think, be supported; and we are of opinion that the plaintiffs had the right of inspection and rejection for defect in quality after the iron arrived in New York. The objection that the plaintiffs waived the right to reject the iron for defective quality by their delay in inspecting and rejecting it after it reached New York was urged on the trial; and the referee found, although with "some degree of hesitation," that under all the circumstances there was no unreasonable delay in the examination by the plaintiffs after its arrival. The steamer Germanic, with hoops and sheets, arrived April 5, 1880; the Arizona, April 12th; the Chester, with hoops only, April 20th. It required from three to five days to discharge cargo, and ten days was the usual time allowed for removing goods from the dock. The hoops which came by the Germanic were removed by the plaintiffs from the dock to their warehouse on or before the 15th of April, when they examined them for the first time, and promptly notified the agents of the defendants of their objections, and requested their removal. They were not taken away by the defendants, and on April 22d the plaintiffs stored them in a general warehouse, subject to the order | of the defendants, and delivered to them the storage receipts. The hoops by the Arizona and by the Chester remained on the dock without examination by the plaintiffs from the time of the arrival and unloading of these vessels until the 26th and 27th of April, when the plaintiffs examined them, and, finding them defective, on the 29th of April they notified the defendants of their objections, and on or before the 1st of May stored them in a warehouse for account of the defendants, and on the 8th of May gave the defendants formal notice that they rejected the hoops, and that they were stored, and on the 11th of May tendered the storage receipts. The referee found that examination of the hoops by the Arizona was possible at any

Sprague v. Blake, and Reed v. Randall, supra, the doctrine stated by Lord ELLENBOROUGH was quoted with approval. Indeed, it stands upon the most obvious justice and equity that the seller should be apprised promptly if there is any objection, and the vendee intends to reject the goods, so that he may retake possession or resell the goods, and save himself as far as practicable from loss. But the vendee has a reasonable time for examination and to give notice; and what is a reasonable time is usually a question of fact, and not of law, to be determined by the jury upon all the circumstances, including as well the situation and liability of injury to the vendor from delay as the convenience and necessities of the vendee. Fisher v. Samuda there was an interval of six months between the discovery of the defect and notice to the vendor. In Hopkins v. Appleby the vendee used the article purchased, after discovering the defect, until it was wholly consumed, and then for the first time notified the vendor of the defective quality. In Reed v. Randall the tobacco was delivered to the vendee in April, and the first notice to the vendor of any defect was in September of the next year.

In

The delay in the examination of the hoops which came by the Germanic for five or six days after they were unloaded, and of ten days in the case of the Arizona, and a less number in the case of the Chester, and the subsequent delay until the 8th of May to give notice of the rejection of the hoops which came by the two last-named vessels, was not so great that the court can say, as matter of law, that it was unreasonable; and we are concluded by the finding of the referee from re-examining the question of fact. The authorities are uniform upon the point that the question of reasonable time, in such cases, is generally one of fact, and not of law. Doane v. Dunham, 79 Ill. 131; Boothby v. Scales, 27 Wis. 626; Hickman v. Shimp, 109 Pa. St.

16; Stone v. Browning, 68 N. Y. 604; Benj. | ined and rejected the hoops which came by Sales, 904.

The

the Germanic, they desired to defer paying The plaintiffs, after the arrival of the for the hoops which came by the Arizona and hoops, made two payments to defendants, Chester until examination. The correspondon April 19th and April 24th. The payment ence between the parties indicates that at of April 24th included the purchase price of first the defendants were disposed to accede the hoops which came by the Arizona and to this view. But on the 23d of April, before Chester. The duties were paid on the land- the plaintiffs had examined the iron, the deing of the goods. The sums paid for duties, fendants, insisting that the iron was acand for the hoops, April 24th, are those cording to contract, peremptorily demanded which the plaintiffs sought to recover back in payment of the plaintiffs, and threatened litithis action. The defendants insist that these gation unless the plaintiffs remitted the payments, made after the arrival of the goods, amount of the account before noon of the conclude the plaintiffs from denying an ac- next day; and in pursuance of this demand ceptance. The payments, it is claimed, were the plaintiffs made the payment of April a conclusive recognition by the plaintiffs of 24th, stating in the letter containing the retheir ownership of the goods, and their obli-mittance that "we reserve the right to rejcet gation to pay for them; and, further, that, the poor iron when we take in store." the payment of April 24th having been made plaintiffs, in making this payment, simply on the demand of the defendants under a complied with their legal obligation under claim of right, it was voluntary, and cannot the contract. They had received the shipping be recovered back. The purchaser of goods documents, although they had as yet made no under an executory contract, where payment examination of the iron, which was then on and acceptance are by the contract concur- the dock. Unless they had already lost the rent and dependent obligations, cannot, on right of examination and rejection by their delivery of the goods, pay the purchase prior delay, they did not lose it by performing money, and subsequently rescind the con- their stipulation in the contract to pay on tract, and reject the goods for defects ascer-presentation of the shipping documents. That tainable on examination. It would be inconsistent with the nature of the transaction, and the admission which the payment implies, to permit him to do so, in the absence of fraud or deceit on the part of the vendor. See Brown v. Foster, 108 N. Y. 387, 15 N. E. Rep. 608. In such case the purchaser must satisfy himself, before making the payment, that the goods tendered correspond with the contract. But the contract may provide that payments shall be made in advance, before delivery or acceptance of the goods. There is nothing in such a stipulation inconsistent with an executory contract; nor would payment under such a contract preclude the purchaser, when delivery is tendered, from the right of examination, or from exercising the right of rejection, if the goods did not conform to the contract. Pope v. Allis, supra; Iron Co. v. Pope, 108 N. Y. 232, 15 N. E. Rep. 335. The duties, under the rules of the customs, were paid, and were required to be paid, before the plaintiffs took possession, and as a condition of their exercising any control of the property. The event upon which the plaintiffs were bound to pay for the iron was specified in the contract, and that was on the delivery to them of the The point that the contract was entire and shipping documents. This might, and in the indivisible, and that the plaintiffs could not ordinary course would, precede the actual de- accept the sheets and reject the hoops, is livery and receipt of the goods into their cus- based upon the general rule of law that tody. There would be nothing necessarily where a contract is entire, though it may inconsistent in making a payment on presen-embrace the performance of several things, tation of the shipping documents, and a sub- if one of the parties professes to deny its obsequent rejection of the iron on examination. ligation upon him, or to rescind it on the It would be analogous to a payment in ad- ground that the other party has failed to pervance of delivery. The defendants had a form its obligation on his part, he must reright to demand payment on delivery of the nounce or rescind it in toto. There was, inshipping documents, although the plaintiffs deed, one contract, in the sense that there had had no opportunity to inspect the iron. was but one instrument, embracing both deIt appears that, after the plaintiffs had exam-scriptions of iron; but the two kinds of iron v.22N.E.no.16-23

obligation was not dependent upon acceptance of the goods. The doctrine of voluntary payment is inapplicable to the case. That doctrine proceeds upon the just rule that a person cannot yield to an asserted right, and pay a sum of money demanded on account of such right, and afterwards maintain an action to recover it back on the ground that he was not legally bound to do the thing demanded; nor will it aid him that, in making the payment, he reserves a right to recall it, or pays under protest, there being no fraud or deceit. Flower v. Lance, 59 N. Y. 604. The plaintiffs here do not deny, but, on the contrary, admit, the right of the defendants to demand the money paid at the time it was paid. They base their action on the ground that, not having then accepted the iron, and the right of rejection still existing, and having thereafter rejected it for cause, the consideration upon which they paid the money failed, and they are entitled to recover it back. We think the claim is well founded. The answer to the point of voluntary payment may be technical, but the defendants stand in the attitude of urging a strict and technical defense.