Opinion by
Williams, J.,This was an action of assumpsit to recover the sale price of tobacco furnished to defendants by plaintiff.
Plaintiff’s agent testified that on November 29, 1912, defendants agreed to purchase all the “Ohio low grades” plaintiff had in stock at four cents a pound. Plaintiff confirmed the alleged order as follows: “We duly received your order through our Mr. Roath for all our Ohio warehouse leaves at 4c a ct. wt. net cash f. o. b. Ohio to' be shipped at once. Same was accepted and the tobacco ordered shipped.” Plaintiff shipped two carloads of what he called “Ohio low grade” from Ohio, and one car from Indiana. Defendants accepted the two from Ohio but refused the one from Indiana, claiming that it was not what they had agreed to purchase. They paid |76.75 freight on the car refused. Plaintiff would not receive the returned car and it does not appear what became of it.
Defendants’ witnesses testified that the contract was to purchase all the “Ohio warehouse leaves” plaintiff had, and not all the “Ohio low grades” and that there was a substantial difference between the two; that in the car refused there were approximately thirty cases of “Warehouse leaves” out of sixty cases. According to plaintiff’s witness the car contained twenty-seven cases o'f “leaves” and the balance, other kinds of “Ohio low grades.”
At the request of the defendants the court charged, *167inter alia: “The contract upon which this action is founded is not for the purchase of three carloads of tobacco or for any fixed quantity of tobacco by the defendant from the plaintiff. It was the purchase of all the Ohio warehouse.leaves which the plaintiff had at the time of the contract. The defendant was not obliged to receive and pay for a car containing tobacco other than Ohio Warehouse Leaves.” Appellant has assigned this as error.
The jury found a verdict for the defendants upon which judgment was entered and plaintiff appealed.
Both parties agree that the contract was for the purchase of all the “Ohio warehouse leaves” plaintiff had in stock. This being so, the contract was entire as to any warehouse leaves furnished by plaintiff to defendants. They were bound to accept all the Ohio warehouse leaves delivered and the evidence is that they refused to accept at least twenty-seven cases. It was, therefore, error to affirm the defendants’ fifth point without this qualification. This was not cured by leaving the other questions in dispute to the jury. Defendants did not buy by the carload, but by the pound, and could not refuse the whole carload because part of it did not come up to the standard. They were compelled under the admitted contract to accept all the warehouse leaves delivered to them by the seller if they were “merchantable under the denomination affixed”: Jennings v. Gratz, 3 Rawle (*168) 167. As Coulter, J., said in Fraley v. Bispham, 10 Pa. 320, 325: “The sale by bill of parcels, with which perhaps the sample corresponded, was of sweet-scented Kentucky leaf tobacco. It is not pretended that the article delivered was not tobacco, nor that it was anything else than Kentucky leaf tobacco......It was in specie Kentucky leaf. tobacco, in kind the same as the article sold......And in such cases......there being neither express warranty nor imputed fraud, the risk falls on the buyer.”
Defendants, in their affidavit, admitted liability for $1,496.56, the value of the two cars accepted, less $76.75, *168freight charges paid, on the car refused; and paid to plaintiff by stipulation $1,419.81, plus costs $14.75, which did not include interest on the amount admitted to be due, nor the item of freight charges claimed as a set-off. This was done with leave to plaintiff to proceed for the remainder of his claim, viz: the items not covered by the payment and the price of the tobacco refused.
Defendants, before suit, sent a check to plaintiff in payment for the tobacco accepted, containing the statement, “In full to date.” This plaintiff refused because it was not “in full to date.” The court below charged that this was a sufficient tender to free the defendants from liability for interest on the part admitted by the affidavit to be due. This was also assigned as error.
The annexing of a condition without right to an offer of payment will prevent it from being a valid tender: Forest Oil Co.’s App., 118 Pa. 138, 145. See also Pershing v. Feinberg, 203 Pa. 144. Whether the tender was sufficient would depend largely upon whether it was all that was due, and this, with the claim for freight, must await a retrial of the case.
The judgment is reversed and a venire facias de novo awarded.