Opinion by
Mb. Justice Fell,. The affidavit in this case is lacking in the merit of clear and concise statement, but it appears to contain the elements of a good defence.
The payment of the freight and the receipt of the goods was not under the circumstances an acceptance of them. Until *352there was a delivery by the railroad company, and the car was being unloaded, there was no opportunity to make such an examination of the goods as would disclose the condition of those in the middle of the car. The purchaser might rely upon the goods being merchantable at the time of shipment, and upon their being packed in the manner and with the care usual to prevent their deterioration and decay while in transit. If the goods were unmerchantable at the time of shipment, or if they became so before arrival because of the unusual and negligent manner in which they were packed by the vendor, it was the right of the vendee to refuse them. These points are sufficiently covered by the affidavit of defence, and we are of opinion that it was sufficient to prevent judgment and to entitle the defendant to go to trial.
The judgment is reversed with a procedendo.