delivered the opinion of the Court.
The evidence adduced by plaintiff supported the allegations of the declaration, and was apparently accepted by the jury, which disposes of the issues of fact. The trial justice was liberal in submitting by proper instructions the issues of fact to the jury. Hence, the appeal can be disposed of upon a single question of law.
The jury found from the evidence that defendant, by its agents, superintended the packing of the apjdes in the barrels at the orchard, and réceived them at the cars, and attended to placing the barrels in the cars. This gave defendant ample opportunity to inspect the fruit at the point of delivery. It is therefore immaterial whether defendant, in fact, made such inspection, since the opportunity was afforded it. If it failed to inspect the fruit at the point of delivery, with its agent in charge, its liability became fixed, and it cannot claim the right *43to rely upon an alleged inspection made on the arrival of the fruit at its destination in Washington. Barnard v. Kellogg, 10 Wall. 383, 19 L. ed. 987; Field v. Schuster, 26 Pa. Super. Ct. 82; Barker v. Turnbull, 51 Ill. App. 226; Brownlee v. Bolton, 44 Mich. 218, 6 N. W. 657.
This is not a case of the purchase of goods on sample, or where an order is given relying entirely upon the good faith of the seller. Defendant, by its agent, examined the fruit in the orchard while it was still on the trees, purchased it on the strength of such examination, and superintended its packing and shipment. Hence, there is no room for the application of the doctrine of implied warranty. “A warranty will not be implied, except in cases where goods are sold at sea, where the party has no opportunity to examine them, or in case of a sale by sample, or of provisions for domestic use. * * *, And the fact that the plaintiff had an opportunity and declined to inspect the seeds before accepting them takes the case from the operation of the rule of implied warranty.” Moore v. McKinlay, 5 Cal. 471.
But it is contended that defendant purchased merchantable fruit in the orchard, and he was therefore entitled to set off against plaintiff’s claim any unmerchantable fruit received at the place of destination. Undoubtedly, if defendant had purchased only merchantable fruit to be gathered, packed, and shipped by plaintiff, and no reasonable opportunity had been afforded defendant to inspect the fruit at Leesburg, the point of delivery, the fruit would have been subject to inspection at Washington, the point of destination. Conceding that defendant contracted only for merchantable fruit, what in fact occurred? Defendant, through its agents, had control of the packing of the apples in the barrels; hence every opportunity was afforded it for a complete inspection. If its agents packed unmerchantable fruit in the barrels and received it at the point of delivery, it is in poor position to complain.
The judgment is affirmed, with costs. Affirmed.