In the case of a contract for sale by sample there is an implied condition that the buyer shall have a reasonable opportunity of comparing the bulk with the sample. See chapter 5, 56.

Where goods are bought by description from a seller who deals in goods of that description (whether he be the manufacturer or not), there is an implied condition that the goods shall be of merchantable quality; provided that if the buyer has examined the goods, there is no implied condition as regards defects which such examination ought to have revealed. See chapter 5, 57.

The Sale of Goods Act (Ont. s. 34; U.K. s. 34) provides: 34. - (1) Where goods are delivered to the buyer which he has not previously examined, he is not deem-ed to have accepted them unless and until he has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract.

(2) Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining wheth-they are in conformity with the contract.

The right to examine the goods can be material only in a case in which, if the goods are not in conformity with the contract, the buyer has the right to reject them. If the contract is for the sale of specific goods, not subject to any express or implied condition, and these goods are delivered, the buyer is obliged to accept them. The sole object of an examination of the goods on delivery can be to ascertain whether the goods delivered are the goods bought or a-greed to be bought. If, on the other hand, the contract is for the sale of goods by description or by sample, or the contract is subject to some condition express or implied as to quality or otherwise, inasmuch as the buyer may be entitled to reject the goods altogether as not being in conformity with the contract, he is entitled to a reasonable opportunity to examine the goods, and until he has had this reasonable opportunity he is not deemed to have accepted them. If there is a mere breach of warranty there is of course no right to reject the goods. As to conditions and warranties, see chapter 5.

Sub-s. 2 of s. 34 does not apply to a c.i.f. contract, because by the terms of such a contract the buyer agrees to pay on the tender by the seller of the invoice, bill of lading and insurance policy, and the tender of these documents constitutes delivery, so that no opportunity for examination of the goods can be afforded contemporaneously with delivery. In the ordinary case, however, of a contract for the sale of goods f.o.b. or other contract by which the buyer has not contracted himself out of his right to examine the goods before acceptance, the general rule at common law was that which is now stated in s. 34. A tender of delivery accompanied by a refusal to permit examination would therefore be invalid.

As to c.i.f. contracts, see Clemens Horst Co. v. Bid-dell, [1912] A. C. 18 and other cases cited in 61; Morrison v. Morrow, 1916, 36 O.L.R. 400, 30 D.L.R, 350.

Prima facie the goods should be examined at the place and time of delivery, but the contract may expressly or impliedly provide that the time of inspection shall be subsequent to delivery and that the place of inspection shall be different from that of delivery. The obligation of the seller is to afford an adequate opportunity of inspection and that of the buyer is to avail himself of the opportunity.

Benjamin, Sale, 5th ed. 1906, p. 753; Perkins v. Bell [1893] 1 Q.B. 193; Graham v. Laird, 1909, 20 O.L.K. 11;

Thames Canning Co. v. Eckardt, 1915, 34 O.L.R. 72, 23 D.L.R. 805; Merrill v. Waddell, 1920, 47 O.L.R. 572, 54 D.L.R. 18

In the United States the section of the Uniform Sales Act corresponding with s. 34 of the Sale of Goods Act contains the following additional provision:

47. - (3) Where goods are delivered to a carrier by the seller, in accordance with an order from or agreement with the buyer, upon the terms that the goods shall not be delivered by the carrier to the buyer until he has paid the price, whether such terms are indicated by marking the goods with the words "collect on delivery," or otherwise, the buyer is not entitled to exam-amine the goods before payment of the price in the absence of agreement permitting such examination.

The Sale of Goods Act (Ont. s. 35; U.K. s. 35) provides: 35. The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them. Acceptance as defined by this section has the effect of preventing the buyer from exercising any right which he may otherwise have had to reject the goods as not being in conformity with the contract, and, as already pointed out, the buyer is, as a rule, not deemed to have accepted the goods unless and until he has had a reasonable opportunity of examining them.

As regards the provision of the Sale of Goods Act which has replaced the Statute of Frauds, there is acceptance "when the buyer does any act in relation to the goods which recognizes a pre-existing contract of sale, whether there be an acceptance in performance of the contract or not" See chapter 2, 26. For the purpose of the Statute of Frauds an act is required, and mere words are not sufficient, whereas under s. 35 an express verbal acceptance or the mere retention of the goods may be sufficient. Again, for the former purpose any act which recognizes a pre-existing contract of sale is sufficient, but under s. 35, the words or act or conduct of the buyer must in effect express the willingness of the buyer to keep the goods. Where, for instance, a buyer under a contract for sale of wheat by sample, having received a number of sacks of wheat delivered at his premises, opened the sacks and examined their contents to see if they were equal to sample, but immediately after doing so gave notice to the seller that he refused to take the wheat as not being equal to sample, it was held that there was evidence of acceptance under the Statute of Frauds, though not an acceptance which would preclude the defendant from rejecting the wheat if it was not equal to sample.

Page v. Morgan, 1885, 15 Q.B.D. 228; Abbott v. Wol-sey, [1895] 2 Q.B. 97.

The Sale of Goods Act (Ont. s. 13; U.K. s. 11) provides that where a contract of sale is not severable, and the buyer has accepted the goods, or part thereof, the breach of any condition to be fulfilled by the seller can only be treated as a breach of warranty and not as a ground for rejecting the goods and treating the contract as repudiated, unless there be a term of the contract, express or implied, to that effect. This provision and other provisions quoted in chapter 5, 54, make it clear that acceptance of the goods does not necessarily prevent the buyer from claiming damages on the ground that the goods are not in conformity with the contract, and the rule appears to have been the same at common law. Acceptance of the goods has, however, its dangers for the buyer. His conduct in taking and dealing with the goods will be scrutinised with some care, and will sometimes have the effect of estopping him from saying that his acceptance is not an acceptance of the goods as being in conformity with the contract.

Hallam v. Bainton, 1919, 45 O.L.R. 483, at p. 488, 48

D.L.R. 120, at p. 123, S.C affirmed sub nom. Bainton v. Hallam, 1920, 60 Can. S.C.R. 325, 54 D.L.R. 537;

Merrill v. Waddell, 1920, 47 O.L.R. 572, 54 D.L.R. 18; cf. Morton v. Tibbett, 1850, 15 Q.B. 428; Willis, Sale of Goods, pp. 88 ff.

In the United States the Uniform Sales Act provides: 49. In the absence of express or implied agreement of the parties, acceptance of the goods by the buyer shall not discharge the seller from liability in damages or other legal remedy for breach of any promise or warranty in the contract to sell or the sale. But, if, after acceptance of the goods, the buyer fail to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows, or ought to know of such breach, the seller shall not be liable therefor. In the United Kingdom the Sale of Goods Act provides: 59. In Scotland where a buyer has elected to accept goods which he might have rejected, and to treat a breach of contract as only giving rise to a claim for damages, he may, in an action by the seller for the price, be required, in the discretion of the court before which the action depends, to consign or pay into court the price of the goods, or part thereof, or to give other reasonable security for the due payment thereof.