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regard to tenderness by an examination of it. For instance, you might examine the end of a piece that would be all right, and not when you get into the middle of the piece. You might test it every time one of these little ridges comes. One side of the piece might be perfectly good, and the other side of the piece not. In an examination one might strike every part of the piece that would be perfectly good, and omit an examination of that part of a piece that would be tender. Have to rely upon the representation of the manufacturer and upon his good intentions. It would be just like an examination of the kernels in a bushel of corn to see whether they were good or not. Witness testified that his attention was called to some of the goods returned. He examined the goods Habercorn returned. He remembers particularly. Some of those he did not know.

'Q. Did you discover from those this tenderness? "A. Just take and tear it right down, you know. "Q. That could have been found by examining it in the piece?

"A. It would have been found very easily, if we had struck the locality in the piece. Examine just that locality, yes, we would have found it."

That the only way of testing corduroys would be to go through and examine every yard and every particle of the width of them; but no manufacturer would do that, nor could do it. They have to depend upon the reputation of the people that deliver the stuff to them.

Defendant's witness Benedict testified that he had examined all of the goods returned by customers, and that those that were damaged had been worn a day or two and goods proved tender. No rip in the seams at all, but in the goods themselves. They proved tender and were returned for that reason, and were good for nothing only rags; worthless for commercial purposes. By taking the goods through one's hands, you could very easily tell that the textile of the goods was faulty.

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Q. That could have been determined before they were sent out by your company?

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'A. If we had any idea that the goods were defective. 'Q. If you had examined the cloth, it would have shown, wouldn't it?

"A. Not unless you had gone at it particularly to find out such a thing.

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Q. I say the goods that had never been used at all, simply made up. You say you discovered some faulty condition?

"A. Same condition as to those. If they had been worn at all, they would have torn them the same as those that had been worn.

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'Q. The goods, when they were sent away from your factory, could have been determined the same way, couldn't they?

"A. Oh, hadn't any idea they were in that condition when they were sent out. We supposed we got goods up to the sample we bought.

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"Q. In order to test corduroys, to find the defects, what would it be necessary to do?

"A. The wearing quality of the corduroy, texture of it, can be told very easily by pulling it each way, with the weave and against it. Whether it is tender or not can be very easily told in that way. He would have to go over each pair separately, and each part of the pair, in order to ascertain that."

Witness testifies that from 30 yards of weave a dozen pairs of pants could be cut. In examining a piece of goods of that kind, they are thrown open and looked over. The sample piece that defendant buys from is simply sometimes a small piece of that size; other times it may be cut long enough to make a pair of pants, two yards and a half. Usually defendant opened the goods, that were sent but did not make a minute examination or investigation of the goods, and have them tested. Sample test is all right. Have to suppose it is in same condition. If there were black and white streaks across it, they would notice that, but not the wearing qualities of it at all. Do not examine goods as to tenderness at all.

The court instructed the jury correctly, as we think, "that by their letter of March 12, 1900, the plaintiffs

141 Mich.-22.

granted to the defendant the privilege to return any unsatisfactory goods, if in the same condition as they were when the plaintiffs delivered them," and further correctly instructed them "that the defendant could not arbitrarily determine that the goods were unsatisfactory and reject them or return them without some valid and sufficient reason, but that in order to authorize the defendant in rejecting or returning such goods it would be necessary for the defendant to satisfy you that there was some reasonable basis and ground for his action in returning such goods."

We think, however, that the court was in error in instructing the jury that there was any evidence before them from which they would be justified in finding that there was any reasonable basis for the defendant's action. Mr. Preston testified that "this sale was originally a sale by samples. The sale was originally by samples of goods. The samples came by express. Witness had then in mind at the time he gave the order of December 28ththe samples that Costuma sent them; that he examined them and knew what they were fairly well." Each subsequent order was given by reference to the number of these samples, and if the plaintiffs filled the order with goods which were up to the standard of the samples it was the legal duty of the defendant to be satisfied. Schliess v. City of Grand Rapids, 131 Mich. 52. "That which the law will say a contracting party ought in reason to be satisfied with, that the law will say he is satisfied with." Duplex Safety Boiler Co. v. Garden, 101 N. Y. 387.

Plaintiffs gave evidence tending to show that the particular goods returned were well up to the standard of the samples. Defendant never had even looked at them, knew nothing about them, and gave no evidence as to their quality whatever. The court permitted the jury to determine the quality of the goods returned entirely from the testimony as to other goods, charging them as follows in this regard:

"If you find that the defendant was having trouble with sales of goods manufactured from grades of corduroy fur

nished by plaintiffs, and which grades were similar in number and quality to the grades returned to plaintiffs, and that such trouble with such sales to customers was occasioned by the tender and defective quality of such grades of corduroys and by such corduroys not being up to sample, or was occasioned because of the defendant's losing trade and customers without guaranteeing the quality of the manufactured articles, and that the quality of the cloth furnished by the plaintiffs was of that character that the defendant could not give such guaranty, then the defendant had valid reason for rejecting such corduroys and returning them to the plaintiffs, if such goods were in the same condition as when they were delivered, provided such goods were returned to the plaintiffs within a reasonable time."

There was no basis furnished by the evidence from which the jury could determine that the goods defendant had trouble with were similar in quality to the goods returned to plaintiffs An agreement that goods sold shall prove satisfactory necessarily implies a reasonably prompt inspection where no period of time is specified, and if the vendee refuses the goods he must be prepared to show that the goods rejected were legally unsatisfactory. He cannot establish his right to refuse acceptance by showing merely that other goods received under similar orders were unsatisfactory. McFadden v. George C. Wetherbee & Co., 63 Mich. 390.

We are also of opinion that the court erred in refusing to direct a verdict for plaintiffs as requested, for the reason that the defendant's act in ordering the goods back to Ionia constituted an acceptance in law. The defendant need not have shipped these goods to New York. It might have kept them at its place of business or stored them in Ionia, taking reasonable precautions to protect the goods. It saw fit, however, to ship the goods to plaintiffs and repudiated any interest in them. If defendant's claim that the goods were not in accordance with the contract was correct, then upon its refusal to accept them and return to plaintiffs, the goods belonged absolutely to the plaintiffs, and the reshipment of them by defendant would

Defendant,

constitute an unlawful conversion of them. having taken its position, must adhere to it, and its dealing with the property in such manner as would be unlawful if it were the property of another constitutes an acceptance of the goods. Farrington v. Smith, 77 Mich. 550; Foster v. Rowley, 110 Mich. 63; Cream City Glass Co. v. Friedlander, 84 Wis. 53 (21 L. R. A. 135); Benjamin on Sales (6th Ed.), § 703; Chapman v. Morton, 11 M. & W. 534.

For the reasons given, the judgment is reversed, and new trial granted.

MOORE, C. J., and MCALVAY, OSTRANDER, and HOOKER, JJ., concurred.

AMERICAN TROTTING ASSOCIATION v. REYNOLDS.

PAYMENTS-RECOVERY-NECESSITY OF ASSIGNMENT.

The American Trotting Association is composed of local driving clubs and agricultural societies, and its by-laws provide, among other things, that each member shall pay all premiums won, unless properly withheld, and that any person obtaining a purse through fraud or error shall surrender it to the secretary of the association, if demanded by the member having paid it, or by the president or secretary of the association. Held, that the association could not maintain suit for purses fraudulently obtained where there had been no assignment to the association of the right of the local societies to sue.

Error to St. Clair; Tappan, J. Submitted July 21, 1905. (Docket No. 66.) Decided September 19, 1905.

Assumpsit by the American Trotting Association against

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