There was an implied warranty that the coal should be merchantable. Murchie v. Cornell, 155 Mass. 60. The report recites that the court, trying the case without a jury, found as a fact that the coal was not merchantable, and ruled, against the plaintiffs’ objection, that the defendants had the right to reject the coal on its arrival at New Bedford. We think that this ruling was right. Pope v. Allis, 115 U. S. 363. Cleveland Rolling Mill v. Rhodes, 121 U. S. 255, 261. Bryant v. Isburgh, 13 Gray, 607. Wiley v. Athol, 150 Mass. 426, 434. Smith v. Hale, 158 Mass. 178. Grimoldby v. Wells, L. R. 10 C. P. 391. Whether, in such a case as this, the title to the property passes to the *581vendee when the coal is delivered on board the barge, is not free from doubt, and we have not found it necessary to decide the question. See Stanton v. Eager, 16 Pick. 467; Tyler v. Currier, 13 Gray, 134; Claflin v. Boston & Lowell Railroad, 7 Allen, 341; Gardner v. Lane, 9 Allen, 492; S. C. 12 Allen, 39, 48; Prince v. Boston & Lowell Railroad, 101 Mass. 542; Merchants’ National Bank v. Bangs, 102 Mass. 295; Odell v. Boston & Maine Railroad, 109 Mass. 50 ; Harvey v. Harris, 112 Mass. 32; Frank v. Hoey, 128 Mass, 263 ; Lord v. Edwards, 148 Mass. 476; Smith v. Edwards, 156 Mass. 221.
If it be assumed in favor of the plaintiffs that the title to this coal passed to the defendants when it was selected by the plaintiffs and laden free on board upon the barge at Weehawken, and when bills of lading were given to the plaintiffs under which the cargo was to be delivered to the defendants or their assigns at the port of New Bedford, they paying the freight, we are yet of opinion that the rulings at the trial were correct. If the title passed to the defendants it was a conditional title, and the condition was that the coal should be found to be of the quality purchased, and the defendants could reject the coal if upon examination it did not conform to the implied warranty that it should be merchantable.
The question is, on the assumption that the title passed to the defendants, whether the defendants did all required of them to revest in the plaintiffs the title to the coal. The report of the presiding justice recites that the plaintiffs requested him to rule that, “ in order to revest the title in the plaintiffs it was necessary for the defendants to assign the bill of lading or tender plaintiffs a release of all interest in or claim to the cargo. But I declined so to rule, and ruled that the defendants had the right to refuse to accept the cargo at New Bedford without tendering back the bill of lading and the invoice, or either of them, and without assigning or transferring to the plaintiffs any interest or legal title in the cqal which was or might be in the defendants ” , and to this ruling the plaintiffs excepted.
The court found that the only bill of lading sent to the defendants was the captain’s bill of lading. This bill of lading was marked “ Captain’s B L.” The captain demanded this bill of lading of the defendants, and they delivered it to him, after having made upon it the customary indorsements of the arrival *582of the barge ready to discharge, and of its being afterwards towed from their wharf and anchored in the stream. The defendants immediately, upon the arrival of the barge examined the cargo, found it unsatisfactory, and gave notice to the plaintiffs that they refused to receive it. One of the plaintiffs thereupon came to New Bedford, went on board the barge, and examined the coal. The report then states that “ Mr, Hart thereupon told Mr. Alden that the cargo of coal was not such coal as they had bought, and that they would not take it, and would not under any circumstances receive it; that it was not merchantable coal, and that they would not have it. Mr. Alden expressed himself that the coal was not of the quality it should have been, nor was it such quality of coal as he had sold him, and it did not correspond to the representation. Mr. Alden said he would try and sell the cargo to other parties, and thereupon called upon other persons and offered to sell the cargo. Mr. Alden afterwards saw the coal several times, inspected and examined the same, visited the coal dealers in Taunton, Attleborough, Brockton, Whitman, places on Cape Cod, and other places, and made various attempts to sell the said cargo, but did not succeed.” Ultimately the owners of the barge libelled the coal for freight and demurrage in a court of admiralty, and the coal was sold under proceedings in the admiralty court to satisfy their claim. These facts show that the defendants tendered the cargo of coal to the plaintiffs and, so far as they could, delivered possession of it to the plaintiffs. The cargo was capable of manual delivery, subject to the barge-owners’ claim for freight and demurrage. These facts also tend to show that the plaintiffs accepted this tender, and assumed control of the cargo; but whether they did or not, they could have accepted it and acquired possession, subject to the lien of the owners of the barge for freight and demurrage. The defendants retained no bill of lading, and therefore could have indorsed none to a purchaser, and the retention of the invoice is immaterial. Assuming that the title to the coal had passed to the defendants subject to examination and acceptance or rejection by them, we think that everything was done by them necessary to a rescission of the contract. See Grimoldby v. Wells, L. R. 10 C. P. 391, Whether something less than was done would not have been effectual need not be considered.
Judgment on the finding.