Lewis C. Vernol, Respondent, v. Frank H. Keeler et al., Appellants

Lewis C. Vernol, Respondent, v. Frank H. Keeler et al., Appellants. (Argued February 5, 1872; decided March 1, 1872.) Action to recover money paid for certain damaged goods. Plaintiff contracted to purchase of defendants a stock of dry goods, .to be inventoried, no damaged goods to be included in the inventory. Plaintiff was unskilled in dry goods. It was understood that an experienced merchant was to be present in his behalf upon the taking of the inventory, but upon his failure to appear the inventory was taken with the expectation that plaintiff was to have a competent person examine them. Subsequently defendants knowingly included in the inventory a quantity of damaged goods. Plaintiff took possession of and paid for the goods as inventoried. A few days thereafter he discovered some of the damaged goods, to which he called defendants’ attention,'and about six weeks after he took possession he had the entire stock examined by experienced dry goods merchants, who selected out the damaged goods. Plaintiff notified defendants to take them away and refund the money paid therefor, and upon their refusal brought this action to recover the same. Held, that there was no acceptance of the damaged goods ; and that, as under the contract, no damaged goods were to be purchased. The rule that a party cannot rescind in part and affirm in part, did not apply; and that, therefore, it was not necessary to offer to return all the goods purchased. Fullerton & Anthony for appellants. A. J. Pa/rker for respondent. [MAJORITY — Peckham, J.,] Peckham, J., reads opinion for affirmance. Church, Ch. J., Grover and Rapallo, JJ., concur. Judgment affirmed.