not up to quality or weight. Suggest Colonel Frambach coming to Baltimore immediately. "PAPER MILLS Co."

Col. Frambach was unable to go to Baltimore, and his son went on, and a settlement was reached upon the basis of allowing defendants $1,101.60, to be paid in paper. This is the only time any paper was rejected. There was much other correspondence which we have not quoted. Taken in its entirety it shows that, while there were occasional complaints by defendants, and statements made by plaintiff of a desire to fulfill the terms of the contract, and a willingness to have defendants reject any paper which did not meet their requirements, at no time was there a suggestion that defendants might accept and use the paper and then present a claim for damages upon the theory that the contract contained a warranty.

It must be remembered that at the time the second contract was made the paper was not in existence, but was to be manufactured and so it was provided in the contract:

"That all paper delivered under the terms and provisions of this contract shall be of the standard quality, which is considered by the customs of the trade as a good delivery, and acceptable in all respects to the said parties hereto of the second part, vendees, with the allowance of a variation of 3 per cent. in the tensile strength as shown by the Mullen tester or in weight over the designated or ordered basis weight."

By the terms of the provision quoted it was a condition precedent that the paper tendered thereunder should be of standard quality, and should not vary more than 3 per cent. in tensile strength and weight over the ordered basis, and should be acceptable to the purchasers. Paper that was not of standard quality and that varied more than 3 per cent. in tensile strength or weight over the ordered basis did not comply with the terms of the contract of sale, and

imposed no obligation on the vendees to receive and pay therefor.

A consideration of the language in the contract in connection with an examination of the case of American Glue Co. v. Rayburn, 150 Mich. 616 (114 N. W. 395), cited by counsel for appellants, will show that the case is easily distinguishable from the instant

case.

It must be conceded that there is a lack of uniformity in the authorities. The rule has been stated as follows:

"When the subject-matter of a sale is not in existence, or not ascertained at the time of the contract, an undertaking that it shall, when existing or ascertained, possess certain qualities is not a mere warranty, but a condition the performance of which is precedent to any obligation upon the vendee under the contract, because the existence of those qualities, being part of the description of the things sold, becomes essential to its identity, and the vendee cannot be obliged to receive and pay for a thing different from that for which he contracted." Pope v. Allis, 115 U. S. 363, 371 (6 Sup. Ct. 69); 2 Mechem on Sales, §§ 1208-1212.

Again:

"In the sale of goods by description, there is a warranty that they shall answer the description, where it is given by way of indicating the character or quality of the article sold, and not for the purpose of identifying it merely, and when the buyer relies upon it as a warranty. It is not an implied warranty, but is construed, under such circumstances, as constituting an express undertaking that the article shall be as described. Such a warranty will not survive an acceptance after inspection." 30 Am. & Eng. Enc. Law, p. 154, and cases cited.

The record shows that, after knowledge of conditions in the paper which defendants claimed amounted to defects, they accepted the paper and used it.

The principles of law involved have recently been

the subject of discussion in this court in the cases of Columbus & Hocking Coal & Iron Co. v. See, 169 Mich. 661 (135 N. W. 920); Gill & Co. v. Gaslight Co., 172 Mich. 295 (137 N. W. 690). It is not necessary to restate what is said in the opinions in those cases. We think they are controlling of the instant case. Judgment is affirmed.

BROOKE, C. J., and MCALVAY, KUHN, STONE, OSTRANDER, BIRD, and STEERE, JJ., concurred.

HAYES v. AUDITOR GENERAL

CONSTITUTIONAL LAW-STATUTES - LOCAL ACTS-CLASSIFICATION ACCORDING TO POPULATION-COUNTY AGENTS-SALARY. Under the provisions of section 30, Art. 5, of the Constitution, prohibiting the passage of local or special acts, except upon the approval of the electors in the district affected, the statute (Act No. 115, Pub. Acts 1913), providing for a county agent and fixing the salary of the agent in counties having a population of upwards of 150,000 at $1,800 per annum, is constitutional and valid, and is not open to the objection that the classification could not be made upon the basis of difference in population. BROOKE, C. J., and MCALVAY, J., dissenting.

Mandamus by John P. Hayes against Oramel B. Fuller, auditor general of the State of Michigan, to require the respondent to issue a warrant upon the State treasurer for the salary of said Hayes as county agent of Kent county. Submitted October 12, 1914. (Calendar No. 26,300.) Writ granted January 4, 1915.

Leonard D. Verdier, for relator.

Grant Fellows, Attorney General, for respondent.

MOORE, J. The question involved is admirably stated in the brief of the attorney general as follows:

"The relator is the county agent of the State board of corrections and charities for the county of Kent. He seeks by this proceeding to compel the auditor general to pay him the salary fixed by Act 115 of the Public Acts of 1913, being 'An act to fix the salaries of the county agents of the State board of corrections and charities appointed in and for counties having a population of one hundred fifty thousand or more, and to repeal all acts or parts of acts contravening the provisions of this act.'

"The respondent, upon the advice of the legal department of the State, declined to make such payment upon the ground that Act 115 of 1913 is in conflict with the provisions of section 30 of article 5 of the Constitution, which reads as follows:

""The legislature shall pass no local or special act in any case where a general act can be made applicable, and whether a general act can be made applicable shall be a judicial question. No local or special act shall take effect until approved by a majority of the electors voting thereon in the district to be affected.'

"It is insisted upon the part of the State that the act in question is a special act and that a general act can be made applicable.

"It is conceded that there are but two persons holding the office of county agent in the State of Michigan to whom this act applies. The 81 other county agents of the State are not within its provisions. It is therefore the claim of the respondent that the act is a special one, within the provisions of the section of the Constitution above quoted, and is therefore void. There are but two counties in the State having a population of 150,000, and we take it as settled by the case of Attorney General, ex rel. Dingeman, v. Lacy, 180 Mich. 329 (146 N. W. 871), that the language of the act cannot give it a general character by the use of words general in their nature, but which

limit its operation to special persons or special territory."

The attorney general cites many cases; among them is Henderson v. Koenig, 168 Mo. 356 (68 S. W. 72, 57 L. R. A. 659), and insists that the last-named case and the case of Attorney General, ex rel. Dingeman, v. Lacy, supra, are controlling and justify the refusal of the auditor general.

There is language used in the opinions cited which afford a basis for this contention. The cases, however, are distinguishable. In Henderson v. Koenig, supra, it is said at page 369 of 168 Mo., at page 75 of 68 S. W. (57 L. R. A. 659):

"The Constitution has pointed out the precise and specific method by which county officers are to be paid, which is by fees; and if the legislature desires to classify counties by population, and thus proportion the amounts of fees the various judges of probate may retain according to such ratio, then this must be done by appropriate legislative enactments. It cannot be done by making one or more judges of probate salaried officers, and compelling them to account for the fees they may receive, and leaving the other judges of probate throughout the whole State unhampered by any such conditions, for this would not be 'a law uniform in its operation,' and therefore not a compliance with section 12 of article 9."

And it was held that, as the Constitution provided that the officer should be paid by fees, the legislature could not provide he should be paid a salary.

In Attorney General, ex rel. Dingeman, v. Lacy, supra, it appears the legislature undertook to call into existence in Wayne county a judicial officer unknown to all the rest of the State. It was held invalid for several reasons, which appear in the opinion. In the instant case no new office is created different from those existing in all the other counties of the State. These officers are appointed by the governor, paid by