(dissenting):
The draft was accejffed on the twenty-eighth of January. It was absolute upon its face, and I think there was a good consideration for it. The defendant did not promptly reject the mushrooms after he had had an opportunity to examine them. He testified that he did'examine, them on, the fifth of February, but it was. not until the thirteenth of March that he notified the plaintiff’s assignor he would not accept them , except on consignment. He could, not receive the mushrooms and deal with them as he did and then refuse to pay the draft on the ground that there was no consideration for it, ■ Upon the undisputed facts ! think he accepted the .mushrooms, and if. they did not correspond to what the plaintiff’s assignor had agreed to furnish, then his claim, was for damages for breach of contract, which he could have pleaded, had he seen fit to do so, by \vay of counterclaim.
For these reasons I. dissent from the prevailing opinion.
..Dowling, J., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.