dissenting:
This action seems to have been rightly decided so far as the merits are concerned. The facts established a decided preponderan ce in support of the proposition that the caps which were returned were defective, and not in accordance with the contract. It is insisted by the plaintiffs that as the agreement under which the caps were manufactured was executory, the defendants were bound to return all the caps which were delivered thereunder, before they could be legally excused from the payment of any portion of the price. We do not think this case can be brought within the principle which the appellants invoke in their behalf. ■ The caps were delivered by two .consignments; one in January, 1877, and the other in February, of the .same year. The first lot were found to be perfect, and in accordance with the contract, and were sold by the defendants to their customers before the receipt and opening of the second package of caps. It therefore became impossible for the defendants to return to the plaintiffs the caps which were first received, and there wins no reason for return, as they were entirely satisfactory. All of the defective caps were in the second lot, and were received on February 5, 1877, and were opened on the 10th of the same month, and, being found defective, were returned to the plaintiffs. A few days thereafter, the defendants addressed to the plaintiffs a letter, accompanied by a check for the balance of the accoimt, which the plaintiffs received, and the following are copies of such letter and check :
“ Ann Harbor, Michigan, March 7th, 1877.
“ Messrs. J. S. Bancroft & Co.:
“ Gentlemen: — Inclosed please find check to balance account in full to date. Your letter came to hand a few days ago, and contents noted. The goods we returned you were unsalable, and not made according to contract. We would advise you, before you do anything rash, to inspect the goods and save expense.
“ Yours very respectfully, SHEEHAN & CÓ.”
*554“ Ann Harbor, Michigan, March Yth, 18YY.
“ $61.06. Ann Harbor Savings Bank.
“Pay to the order of ourselves ($61.06) sixty-one j™dollars.
“SHEEHAN & CO.”
Indorsed: “ Pay to the order of J. S. Bancroft & Co., in payment of our acct. in full.
“ SHEEHAN & CO.
“ J. S. BANCROFT & CO.
“J.W. KNIGHT.”
From the evidence, it appears that the plaintiffs received the letter and check, and negotiated the latter, which was paid by the defendants. It is insisted further by the plaintiffs, that the delay in opening and examining thg second package of caps was such that the defendants should be held to have accepted them. We think otherwise, under the circumstances of this case. The delay was only live days — from the 5th to the 10th of February — and the first lot being perfect, there was nothing to lead the defendants to apprehend that the last sent would prove otherwise. The defendants gave evidence explaining the delay, and the court submitted the question to the jury to determine whether, in view of all the circumstances, there had been unreasonable delay on the part of the defendants in regard to the opening and examining the caps; and they must necessarily have found that no such delay had been shown. Again, the fact, that the plaintiffs negotiated the cheek, after notice that a portion of the caps had been returned, and that such check was sent to pay the balance of the amount in full, is more significant against the plaintiffs’ case, in our judgment, than the delay of five days by the defendants to open and examine the caps can be regarded as against the defendants’ case. The plaintiffs made the following request;
“ Plcántiff s’ Counsel: We would like to ask your honor for per- ,, mission to give the evidence in regard to the condition of these goods.”
• Excluded. Testimony closed.
The granting or refusing of this request was discretionary with the court, and furnishes no ground, under the circumstances, for reversing the judgment. (Hastings v. Palmer, 20 Wend., 226; Ford *555v. Niles, 1 Hill, 300 ; Silverman v. Foreman, 3 E. D. Smith, 322.) We have examined the exceptions taken by the plaintiffs to the charge of the judge, and to his ruling, in receiving and excluding evidence, and discover no error which could have prejudiced the case of the plaintiffs. We are convinced that substantial justice has been done in this case, and that no sufficient reason has been shown by the plaintiffs which requires the court to reverse the judgment, which should be affirmed with costs.
Judgment reversed, new trial ordered, costs to abide the event.