The opinion of the court was delivered b.y
Royce, J.The circular that the defendant ordered the goods upon the strength of, provided that all goods not satisfactory when received, could be returned by paying express charges both ways. When goods of a specific description are ordered, and the goods when received do not answer the description, if the party giving the' order would avail himself of the right to return the. goods, he should do so as soon as he has time and opportunity to ascertain the fact. Neate et als. v. Ball et als. 2 East, 117; Humphries v. Carvalho, 16 East, 45; Long Sales (Rand’s ed.), 217; Parsons Merc. Law, 55; Moss v. Sweet, 3 Eng. L. & Eq. 311.
The-case finds that the particulars in which the goods differed from the description called for by • the order, were such as could *599be ascertained by an inspection of the goods. The defendant, by his detention of them for the length of time he did, before he endeavored to return them, and by the acts of dominion he exercised over them, waived his right to return them. If any question could be made under the circular as to the time within which the goods might be returned, that time is defined and made certain by the plaintiff’s letter of Dec. 3d, which was sent with the bill of the goods. By that letter, he was directed that if he returned any of the robes, to “ do so at once, soon as received.” It was competent for the plaintiff to give that direction, and the time within which the defendant might return any portion of the goods, was limited and controlled by it.
Judgment reversed, and judgment for plaintiff.