*176OPINION.
Smith :The losses resulting from discarding certain of its looms during the years 1917 and 1918, in whatever amount actually sustained are proper deductions from net income for those years under the provisions of section 234(a) (7) of the Revenue Act of 1918. Appeals of Dilling Cotton Mills, 2 B. T. A. 127; Automatic Transportation Co., 3 B. T. A. 505, et alia.
The evidence is convincing that at least a part of the losses claimed was actually sustained. It is shown that all of the looms in question *177bad been in nse for about seventeen or eighteen years. They were all of the same type and pattern and had cost approximately the same when new. The records showing the actual cost of each lot of looms were not available, but it was shown that one lot had cost $50 each and another lot $57 each. A minimum cost price of $50 each may be ascribed to all of the looms discarded.
It is further shown that all the looms had been kept in good repair; that the working parts were renewed from time to time as they became worn. J. Wheeler Mears, superintendent of the factory since it first began operation, testified that the old looms when discarded were capable of practically as efficient work as when new, and that they would not have been discarded but for the fact that the new automatic looms could be operated more economically and more profitably. There is no doubt that the petitioner was forced under stress of keen competition and marked industrial progress to abandon the old looms long before the expiration of their natural useful life. Under the taxing statute above referred to, the petitioner should be allowed the deduction of whatever loss was thus sustained.
While it may be true, as contended by the petitioner, that the looms with proper care might have been kept in use indefinitely, we are inclined to set a more conservative limit on their actual useful life. Appeal of Dilling Cotton Mills, supra. The evidence warrants a finding that the loss on each discarded loom was $25, or 50 per cent of the minimum cost thereof, less $10 salvage value of each loom.
Under the terms of the contract of sale evidenced by the order set forth in the findings of fact, the petitioner agreed to sell M. Lowenstein & Sons, Inc., a certain quantity of a specified kind of cloth on or before November 30, 1918. The order was dated May 29,1918. At that time the goods were neither ascertained nor manufactured. During the year 1918 the goods were all manufactured but not all shipped. The petitioner kept its books of account upon the accrual basis and its books of account for 1918, as originally closed for that year, showed the sale of the total amount of the goods ordered through its selling agents at the contract price and they also showed a credit to the selling agents of the commissions to which they were entitled in respect of the order. The petitioner now contends that its books of account were in error in this regard; that the cloth had not been shipped to M. Lowenstein & Sons, Inc., during the year 1918, and that there was no way by which the purchaser could be required to accept the goods inasmuch as the purchaser had the right to satisfy itself that the goods were of the description and quality ordered before they were bound to accept them; that the goods were not sold within the year 1918, and that *178the goods which had been manufactured for the order but not shipped at December 31, 3918, should have been reflected in the petitioner’s inventory at cost and not in sales at the contract price. The respondent contends that, inasmuch as the petitioner made its returns upon the accrual basis, and inasmuch as the books of account show that the goods manufactured for the order were sold during the year 1918, the petitioner is obligated to include in its income for 1918 the profit which it would have received upon the contract if the goods had been accepted by the purchaser at the contract price.
The contract here in question was made in New York State and is governed by New York law. Section 128 of the Personal Property Law (Laws 1909, ch. 45) provides in part:
1. Where goods are delivered to the buyer, which he has not previously examined, he is not deemed to have accepted them unless and until he has had a reasonable opportunity to examine them for the purpose of ascertaining whether they are in conformity with the contract.
The rule under the common law was the same. It is unnecessary to review the innumerable cases in point. The rule was clearly laid down by the Supreme Court in Pope v. Allis, 115 U. S. 363. The court there said:
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 thing sold becomes essential to its identity, and the vendee can not be obliged to receive and pay for a thing different from that for which he contracted. * * *
The authorities cited sustain this proposition, that when a vendor sells goods of a specified quality, but not in existence or ascertained, and undertakes to ship them to a distant buyer when made or ascertained, and delivers them to the carrier for the purchaser, the latter is not bound to accept them without examination. The mere delivery of the goods by the vendor to the carrier does not necessarily bind the vendee to accept them. On their arrival he has the right to .inspect them to ascertain whether they conform to the contract, and the right to inspect implies the right to reject them if they are not of the quality required by the contract. The rulings of the Circuit Oourt were in accordance with these views.
The goods here in question were rejected during the year 1918 and found to be in fact subject to the imperfections charged by the buyer. Only after material adjustments were made was the contract ever fully performed.
We have no doubt that the course followed by the petitioner was the natural and customary one according to good business practices and within the reasonable expectation of the contracting parties. The petitioner’s books of account for 1918 did not reflect its true income for the year 1918 for the reason that they reflected a profit *179upon the sale of goods to M. Lowenstein & Sons, Inc., in excess of the true profit. At the close of 1918, M. Lowenstein & Sons, Inc., was under no binding contract to accept the goods which had been manufactured for it by the petitioner but which did not measure up to specifications and which had not in point of fact been accepted by the purchaser. The Commissioner’s own regulations (article 1581, Regulations 45) provide:
The inventory should include merchandise sold but not shipped to the customer at the date of the inventory, together with any merchandise out upon consignment.
The 232,981 yards of cloth having an inventory value of $40,147.81 at December 81, 1918, should have been included in the petitioner’s inventory at that date and not in its sales at the price of $69,879.30. Likewise, the petitioner should not have deducted from gross income any commissions in respect of these goods whieh had been credited upon its books of account to Haines, Morehouse & Woodford.
Judgment will be entered on 15 days’ notice, v/nder Bule 50.