*591DISSENTING OPINION.
STUBGIS, J.I am compelled to dissent from the majority opinion in this case and as my dissent, would be meaningless without stating the grounds thereof, I shall do so briefly. I agree that the facts are not disputed but they are not fully stated. The plaintiff is really a commission merchant of Minneapolis, Minnesota, and bought the onions in question for defendant in Texas on a special order and had them there loaded in the car and shipped from Earedo, Texas, to Springfield, Missouri. The defendant knew this, as his preliminary inquiry was as to the price of Texas onions and his telegraph order was to buy for him the kinds designated. The car was loaded May 11, 1912, and on May 13th, the plaintiff so advised the defendant by letter and stated that the order contained 494 crates and that bill of lading and invoice would follow as soon as plaintiff received the proper papers from Texas. No reply was made to this, although the defendant says he knew the standard weight of a crate of onions to be fifty-seven pounds and that this amount was seventy crates in excess of a minimum car, 24,000 pounds, which he had ordered. The car arrived at Springfield on the fifteenth, and defendant at once inspected it without complaint. On the eighteenth, defendant received from plaintiff the invoice and notice from the local bank of the draft with bill of lading attached. This ¡gave him no additional information as to the weight or size of the car, giving only the number of crates. There is no evidence that the ear or onions were ever actually weighed, as the railroad took the crates at fifty-seven pounds each as a basis of freight charges and the draft was based on the prme per crate; and the court’s finding as to excess weight is based on the number of crates at fifty-seven pounds each. He then wired plaintiff four words: “Can’t use car onions.” This, to say the least, is am*592biguous and certainly does not imply that the car is rejected on account of excess weight. Defendant admits that he could have sent a ten word telegram for the same price giving his reason for rejecting the car. Plaintiff explains the excess by the fact that the car had been loaded in Texas by hauling the onions from the country in wagons and that it was not easy to get any exact amount. He says further that, never having seen the onions, he thought the man he had bought from in Texas had loaded some bad stock and on the same day wired defendant: “What’s matter onions? Loaded specially for you and if good condition expect you accept. Advise quick. ’ ’ He wrote a letter to the same 'effect. Receiving no reply from defendant, the plaintiff caused a broker in Springfield to find out the trouble and try to adjust the same and from him got the first information on May 21st, that defendant objected to the excess quantity of onions. The plaintiff at once instructed this broker to sell the excess to some outside party and offer the defendant the exact minimum car of 24,000 pounds and he would reduce the draft. This offer and information were given defendant on May 22nd, and he again refused to accept, giving as his reasons: “I can’t use these onions now. I needed the onions but I bought another car Tuesday.” Onions had suffered a sharp decline and defendant admits that he did not accept the other car. On this point the trial court found: “I find that between May 18 and May 21 the defendant ordered another car but that said order was countermanded and that said car was not received by the defendant and that the defendant was occasioned no inconvenience or embarrassment on account of ordering said last-mentioned car.” After notice to defendant, plaintiff sold the onions for the best price obtainable and sues for the loss.
The only reason given by the trial court in its finding of facts and conclusions of law for denying *593plaintiff’s recovery is that no specific offer to reduce the freight was made by plaintiff “unless it could be implied in the offer to reduce the draft and take off the defendant’s hands the seventy crates in excess of •the amount ordered.” The trial court, however, found that no inquiry was made by defendant as to this or request for any such reduction. On the contrary, plaintiff claims that he fully intended and was willing to make such reduction. It is certain that defendant did not decline, and in his evidence he does not claim that he declined, to accept the minimum car because of excess freight charge. He based his refusal on it being too late — he had bought another car. There is not the slightest suspicion that defendant ever thought of refusing the car from fear of having to pay a slight excess of freight charge or that he would have accepted the car on a specific offer of this reduction.
The law should, and I think does, favor and promote fair dealing. No one can question but that defendant should, as between merchants dealing with each other in good faith, on the arrival of a car of onions shipped to him on his order from a point distant from the place of business of the seller, have informed the seller of the cause of its rejection by him. Had defendant done so,' the matter could and doubtless would have been rectified. The seller has rights in such cases and the buyer cannot reject a shipment of goods tendered to him on his order and say nothing or act in bad faith in giving his reasons for the rejection. When a buyer has made a contract to purchase certain goods to be shipped to him from a distant point and such goods come to him in the usual course of shipment and are tendered as in compliance with the contract, it becomes the duty of the purchaser to, in good faith and in a reasonable time, inspect the goods and, if he finds a valid reason for rejecting the same as being deficient in quantity or *594quality or other cause, he must exercise his right of rejection and notify the seller. I agree that he is not required to accept more goods than he ordered nor to even separate the amount ordered from a larger shipment, especially if this requires labor or expense, and the shipping a larger quantity than ordered gives a right of rejection. Such is the law also when all or part of the goods shipped are of inferior quality. A seller cannot force on a buyer more goods or a different hind or quality than ordered and it is useless to -cite authorities to this effect. But the right of rejection when the goods are tendered may be exercised or waived. ‘ ‘Where the goods are not such- as the buyer is bound to accept, he is, of course, justified in rejecting them. The law prescribes no particular method ■of rejection, and, in the absence of an agreement as to the method, any means which unequivocally indicates that the buyer refuses to accept the goods will suffice. The parties may agree that in case of rejection the buyer shall return the goods to the seller, but in the absence of such an agreement the buyer is under no obligation to return them; notice to the seller that they are rejected is all that the law requires.” [2 Mechem on Sales, sec. 1402.] Where a certain quantity and quality of iron was purchased to be shipped from Liverpool, England, to New York by boat and part of it was landed at the dock and remained there several days to the buyer’s knowledge without his either accepting or rejecting it, the claim was made as to this part that the purchaser waived by mere delay in rejecting it the right to reject for deficient quality. The court said: “It is the duty of a purchaser to act promptly in making an examination of goods sent upon his order, to see whether they comply therewith, and to give prompt notice to the vendor of their rejection, if found defective, if he intends to avail himself of that remedy. . . . Indeed, it .stands upon the most obvious justice and equity, that *595the seller should be apprised promptly if there is any objection and the vendee intends to reject the goods, so that he may retake possession or resell the goods and save himself as far as practicable, from loss.” [Pierson et al. v. Crooks et al., 115 N. Y. 539, 551, quoted with approval in Steam Heating Co. v. Gas Fixture Co., 60 Mo. App. 148, 153.] The case just quoted from is long and it should be noted that it involves separate shipments of iron, one boatload of which was left at the dock several days after its arrival and was there inspected and rejected and then placed in a public warehouse, so that the buyers never had this part of the shipment in their possession. The question raised as to this part of the shipment was as to the duty of the buyers in inspecting and rejecting the iron while it was at the dock and tendered to the buyers. This is what the court is talking about in the above quotation. It is true that the purchasers in this case were suing to recover back the custom duties, etc., paid on this iron, but it takes no argument to show that the seller could set up as a defense when sued by the buyer to recover back the money paid the same facts as would have warranted his recovery in a suit, for the purchase money, to-wit, using the language of the court, that “the plaintiffs (buyers) waived the right to reject the iron for defective quality by their delay in inspecting and rejecting it after it reached New York.” The court distinctly says that the fact of the buyers making the payment under the facts of that case is “analogous-to a payment in advance of delivery,” and the case on this point is precisely as if the. buyers had not paid and the sellers were suing for the purchase price. It is worthy of note also that the court found that the iron tendered was so defective in quality as to be unmerchantable. That notice must be given in case of rejection is plainly implied in Clothing Co. v. Singleton, 161 Mo. App. 366, 371, 143 S. W. 529, where it is said: ' “When a purchaser, *596upon receipt of goods, knows the seller has shipped •a less or greater quantity than he ordered, he has the option to rescind the contract, and to avail himself of such privilege it is not necessary to return the property or to make any other disposition of it, but an offer to return or a notice to the seller that he holds the property subject to his order, or that he will not accept it, will answer the demands of the law. [Landesman v. Gumersell, 16 Mo. App. 459.]” [24 Ency. of Law (2 Ed.), 1090.]
Good faith requires a statement of the true reason for exercising the right of rejection, and a rejection on one ground is generally a waiver of any other grounds known to the purchaser. [35 Cyc. 213; 24 Ency. of Law (2 Ed.), 1092.] In Smith v. Pettee, 70 N. Y. 13, defendant refused to receive certain iron because shipped to him on a boat of a different name than that specified in the contract; later he claimed a deficiency in quality. The court said: “The defendants did not, on the tender of the iron to them, make-any objection to its quality, or that the quantity was deficient, but stood upon the ground that the name of the vessel differed from that written in their contract, and upon that contract only. Even in .their answer to the complaint in this action, they do not set up any fault in the iron tendered to them; but upon the trial. they gave evidence- that out of the 100 tons or thereabouts which arrived by the St. Christopher, seven or eight tons were of a quality not embraced in the contract, and they seek to avail themselves now of that fact. Technical answers might be given to this claim, but the best one is that it is not founded in good .faith. If the objection to receive the iron had been placed on the ground that among the 103 tons tendered there were eight which the defendants were not bound to accept, the plaintiffs could have separated these eight tons from the- general mass, and would still have performed their contract by tendering the ninety-five *597tons.” In Sutton v. Risser (Iowa), 74 N. W. 23, the plaintiff rejected the goods when tendered on account of the quality and later tried to justify this on account of the quantity. The court there said: ‘ ‘ The defendants offered to correct ‘any error or discrepancy,’ but the plaintiff refused to accept the offer, and would not' receive the goods. His refusal to accept any of the goods cannot now be justified by the alleged failure of the defendants to furnish a small quantity which he refused to receive.” To the same effect is Knox v. Schoenthal, 13 N. Y. Supp. 7.
The above cases may not be. “on all fours” in every. respect with the present case, nor do they need to be to announce correct principles of law. It is only claimed that they sustain the points on which they are cited.
It must be borne in mind that there were two tenders to defendant of the onions shipped in this ease. The first tender was of the car containing a larger amount than ordered. He could have acted on that only by paying the draft covering the excess. I agree that defendant had a right to reject the shipment for that reason, provided he had given prompt and proper notice to plaintiff of the rejection. The second tender of the onions was of the proper quantity, the excess to be removed by plaintiff’s agent and the draft reduced accordingly. Whatever delay there was in making this second tender was due to defendant’s repeated refusal to disclose the cause of his rejecting the car. Plaintiff acted by wire and made the second tender the very day he ascertained through the Springfield broker the cause of the rejection. The defendant rejected this second tender also, giving as his sole reason that he had ordered another car, which, as we have seen, the trial court found was countermanded and was no reason at all. Now defendant justified this last rejection on the failure of plaintiff to specifically offer to pay the excess freight — a reason not assigned by him *598at all — and this is the only contention of his sustained by the finding* of the trial court.
I may grant that the ..facts of a case might warrant or even compel a finding that the excess in quantity or deficiency in quality of the goods shipped might he so gross and outrageous that the shipper would he held to know that the buyer would not accept same and thus dispense with notice of the rejection and cause thereof. But, at most, that would be a question of fact in this case, as reasonable men might differ as to whether there might have been an honest mistake in conducting a large business, where much of the work is necessarily done by clerks and through other dealers at distant points, and plaintiff might have been in good faith in desiring to know why the car was not accepted. The trial court made no such finding against the plaintiff and we cannot uphold the judgment on a finding which we might think he ought to have made.
It seems to me that in both law and good morals the plaintiff is entitled to recover his loss.