Sec 590

Contracts " of sale or return " differ from contracts of sale on trial in this, that the 6ale on trial calls for some sort of trial of the goods, and becomes absolute on expression of approval as well as on retention beyond the time fixed for trial; while contracts "of sale or return" do not make subjection to trial a condition, and consist of a mere proposal of sale, the retention of the goods beyond a reasonable time being an acceptance.1 But a contract which provides for the delivery of the goods to the purchaser to be paid for in the future or returned if he cannot pay, constitutes a present sale.2 - To agree to purchase if satisfied creates a condition precedent; to agree to return if not satisfied constitutes a condition subsequent. "An agreement to purchase if he liked is essentially different from an option to return a purchase if be should not like. In one case the title will not pass until the option is determined; in the other the property passes at once, subject to the right to rescind and return."3 And a return before the time limited is not made inoperative by the fact that the article returned has been intermediately injured by causes with which the purchaser has had nothing to do.4 But in any case the return must be within the period limited, or the sale is absolute, and even a suit on the warranty is excluded.5

Otherwise as to promisor's approval of goods or work.

1 L. 8, D. de 0. et A. (44, 7); L. 108, sec 1, D. de V. O. (45. 1); L. pr. D. de cont. emt. (18,1); L. 13, C. eod. (4. 38); L. 46, sec 3, cit.

2 L. 308, sec 1, cit.

3 L. 7, pr. cit. 4 sec 93.

5 Benj. on Sales, sec 565, 595; Dela-mater v. Chappell, 48 Md. 244; Mc-Cormick v. Basal, 50 Iowa, 523; Hunt v. Wyman, 100 Mass. 198; Reed v. Upton, 10 Pick. 522; see McCarren v. Mc-Nulty, 7 Gray, 139; Atkins v. Barnstable, 57 Mass. 428; cases which go too far in leaving the matter too much to the purchaser's caprice; see supra, sec 16.

6 Ibid.; Humphries v. Carvalho, 16 East, 45; Waters Heater Co. v. Mansfield, 48 Vt. 378'; Dewey v. Erie, 14 Penn. St. 211; Spickler v. Marsh, 36 Md. 222; Prairie Farmer Co. v. Taylor, 69 111. 440.

7 Ellis v. Mortimer, 1 B. & P. N. R. 257; Aiken v. Hyde, 99 Mass. 183.

8 Elliott v. Thomas, 3 M. & W. 170; Lucy v. Mouflet, 5 H. & N. 229; see Smith v. Love, 64 N. C. 439.

Sec 591

Further illustrations of the rule that a promise may be conditioned on the promisor's approval of certain extraneous acts or things are to be found in cases in which an offer of a reward is made to parties who come up to certain conditions determined by the promisor;6 and in cases of offers to architects to make plans for a proposed building, such plans to be paid for if satisfactory.7 In such case the duty of examination must not be exercised capriciously, but there must be a reasonable trial of the plans;8 though it is competent for the parties to leave the question And so as to contracts " of sale or return."

Condition of approval must not be capriciously exercised absolutely to the determination of the employer, in which case it will be sufficient if he exercises his option in good faith.1 - Another illustration is to be found in the conditions, common in leases, prohibiting assignments unless with the lessor's assent. The lessor's right of rejection in such cases cannot be arbitrarily exercised. Hence, it has been held that a mere arbitrary and unreasonable refusal to assent to an assignment does not preclude such an assignment, though each limitation of this kind is to be determined by its special terms.2 - Still more strongly is the fairness of such discretion insisted on when its exercise has in it anything of the judicial element. Thus, where, in an assignment for creditors, it is provided that debts shall be verified by such proof as the assignee shall require, it has been held obligatory on the assignee to subject the claims only to reasonable tests.3 And a similar duty is imposed upon insurers by the clause in policies requiring that, before payment of an alleged loss, the insured must furnish to the insurers such proofs as they shall deem necessary to establish his claim.4

1 Moss v. Sweet, 16 Q. B. 493; El-phick v. Barnes, L. R. 5 C. P. D. 321; Perkins v. Douglass, 20 Me. 317; Ray v. Thompson, 12 Cush. 281; Schlesin-ger v. Stratton, 9 R. I. 578; Chamberlain v. Smith, 44 Penn. St. 431.

2 Martin v. Adams, 104 Mass. 262; McKinney v. Bradlee, 117 Mass. 321.

3 Wells, J., Hunt v. Wyman, 100 Mass. 198.

4 Head v. Tattersall, L. R. 7 Ex. 7.

5 Hinchcliffe v. Barwick, L. R. 5 Ex. D. 177.

6 Supra, sec 24.

7 Moffatt v. Dickson, 13 C. B. 543; 15 C. B. 583. As to plans to be submitted to architects, see infra, sec 594.

8 Dallman v. King, 4 Bing. N. C. 105; Parsons v. Sexton, 4 C. B. 899.

6. Action of third party.