The crucial question upon this appeal is, had the defendant the right when the guns were sent him to reject them after inspection regardless of whether they were such as should have satisfied a reasonable man ?
The plaintiff’s theory is that the defendant had no such arbitrary right; and that although the circular letter of May twentieth — which was the means employed by the plaintiff to bring his cannon to the attention of the defendant — left it to the latter to determine *317after seeing the guns whether he would retain them or, if not perfectly satisfied, return them, the defendant did not act upon such letter, but subsequently sent his captain who interviewed the plaintiff and visited with him the Marine Supply Company and selected a pattern gun and thereafter the rights of the parties depended upon whether or not the guns as shipped conformed with and were ■equal in workmanship to the pattern gun which the captain had ■seen.
If the defendant had gone in person, or if the captain had been ■clothed with any authority, express or implied, so that as agent of the defendant he could thus bind him and the cannon were ordered from a sample or pattern, there might be some force in this contention. It will be noticed, however, that the captain after visiting the store of the Marine Supply Company with the plaintiff and examining a gun which he thought was of a suitable pattern, did not undertake to bind the defendant, but he instructed the plaintiff to write Mm a letter embodying the particulars of the pattern gun, and this was done to the end that the matter might be submitted to the defendant for his further consideration.
Acting upon the description contained in the letter thus written, the defendant sent the telegram directing the jdaintiff to ship the guns, but there was nothing in this telegram nor in the correspondence between the parties that in any way waived the right which was conferred upon the defendant by the letter of May twentieth to return the cannon if not satisfactory to him after inspection. It seems to us that the rights of the jiarties must turn upon whether by what was said, done or written by the defendant’s captain or the defendant himself, the defendant gave up or waived the arbitrary power or right of rejection conferred upon him by the May letter. Although that letter solicited an early reply and stated that later in the season it would be impossible for the plaintiff to ship on approval, there was no attempt on the part of the plaintiff when during the first week in July the defendant’s captain visited him to revoke or modify the conditions of the offer which had been made. To avoid the effect which must otherwise be given to this letter, the plaintiff must stand upon the ground that, regardless of his rights thereunder, the defendant, either himself or through his captain, undertook to purchase the guns after a pattern or from a descrip*318tion, and that if the ones sent him were conformable thereto he was obliged to keep and pay for them.
As we have endeavored to point out, the plaintiff could not, as the result of the visit of the captain, when the pattern gun was shown, from anything that the captain said or did, and which he had the right acting on behalf of the defendant to say or do, change the conditions as to the shipment of the guns, or destroy the right which had been vested in the plaintiff to return them if they did not give perfect satisfaction. After receipt of the May letter it was entirely proper for the defendant to send his captain to examine the stock of the plaintiff, or, as was done, the stock of other firms and companies who had cannon for sale, so that the defendant might have the necessary information upon which he could act in requesting the plaintiff to send the kind of cannon which he was under the May letter entitled to receive for examination, and if not satisfactory to him, return.
This, therefore, was not a sale by sample, nor after a pattern nor by description; for the plaintiff had reason to know, and as it would seem 'from his offer to Mr. Pierce and his visiting him after the cannon were rejected, for the purpose of inducing him to permit certain changes so that he would accept the guns, did know that they were sent subject to the defendant’s approval. The plaintiff, as shown both by the May letter and the subsequent negotiations, took the risk of furnishing cannon which he was to place on board the yacht in a condition perfectly satisfactory to the defendant; and this he said he was, from his experience, confident that he could do. We see no escape, therefore, from the conclusion that having failed to do so, and the defendant having, upon receipt of the guns, promptly rejected them and expressed his dissatisfaction and returned them, it became the plaintiff’s duty to receive the guns back, and he had no right to insist that the defendant should be satisfied with and pay for them.
Upon the subject of the actual condition of the guns there was an unquestioned conflict, the evidence of one side tending to show that the guns were unsuited and of the poorest workmanship, and on the other side that they were of the average kind and in good condition. It is not disputed that there were small sand holes, but the plaintiff’s testimony was that these were common in that kind of *319work. If the rights of the parties depended upon the solution of the question of the character of the defects, and as to whether or not they were so substantial as to justify a reasonable man in rejecting the cannon as defective, then, as held by the learned trial judge, the question of fact thus presented was upon the evidence for the jury to determine.
We do not think, however, that this issue was controlling, because, as has been pointed out, it was made to appear that the plaintiff opened negotiations through the inducements held out in the letter of May twentieth, which conferred upon the defendant the right of ordering the guns and having them sent for his inspection and approval, and upon his conclusion that they would not give perfect satisfaction, returning them. We find nothing in the subsequent acts of the parties which would justify the inference that the defendant lost or waived such right of rejection, or that the plaintiff had any ground for believing that he was forwarding the guns on terms other than those expressed in his May letter. For this reason, therefore, we think that the trial court was in error in denying the motion to dismiss the complaint, and that such error requires a reversal of the judgment and order appealed from and a new trial, with costs to the appellant to abide the event.
Van Brunt, P. J., Patterson, Ingraham and Laughlin, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.