sued for the purchase price of goods, may show that the goods were not what he contracted for.

In Smith v. Pickands, 148 Mich. 558, 112 N. W. 122, the court held that the burden of proof was on the vendee to show that the goods delivered were not as specified in the contract after an acceptance by the purchaser.

In Tacoma Coal Co. v. Bradley, 2 Wash. 600, 27 Pac. 454, 26 Am. St. Rep. 890, this court said:

"It is undoubtedly true that, if the brick were defective, and appellant was silent, and did not give notice or offer to return them within a reasonable time after discovering defects, the right to rescind the sale was thereby waived. But the right to recover damages on account of defective quality was in no wise affected."

ity of coal, and the vendee sought to escape liability on the purchase price on the ground that the coal received was of an inferior grade, and the court there held that the quality of the coal was an issue in the case, and evidence was taken on that question.

In Neck v. Marquette Cement Mfg. Co., 158 Wis. 298, 148 N. W. 869, a quantity of cement was sold under a written contract which provided that the cement should conform to standard specifications for Portland cement adopted by the American Society for testing materials with methods of testing recommended by the American Society of Engineers. Evidence was admitted showing that the cement was inferior by the use of another test, and, in answer to the vendor's contention that the only way the cement could be shown inferior in quality was by the test provided for in the contract, the court said: "In the absence of a provision * * making the test the sole evidence of the inferiority of the cement, the fact might be established by other evidence."

Mette & Kanne Distilling Co. v. Lowrey, 39 Mont. 124, 101 Pac. 966, holds that, in an action by a vendor to recover the purchase price of chattels sold under a contract, the burden of proof is on the vendor to show a delivery of the goods described in the contract, thus recognizing the rule that the vendee can show that the goods delivered were not the goods described in the contract.

[3] Respondent next contends that, because Peterson accepted and used the brick without notifying it, until this action was instituted, that they were of a quality inferior to that contracted for, he cannot now be heard to say that the bricks were inferior to those described in the contract. In discuss ing the rules applicable to this contention, it will be well to keep in mind that respondent is attempting to recover the purchase price of highway paving brick as provided for in the contract of purchase; there thus being an express warranty that the brick to be delivered would be highway paving brick. Peterson is not seeking to rescind the contract nor to avoid liability for the value of the brick, but is attempting to set off the difference in price between the brick described in the contract and the brick he claimed

a reasonable time after discovering the defects operates as a waiver of the right to rescind, and leaves the purchaser only the right to recover or offset damages to the extent of the diminished value of the article."

In Dayton v. Hooglund, 39 Ohio St. 671, the court held that:

"In a suit for the price of a lot of iron manufactured by the plaintiff for the defendant, the defendant, in case there is a breach of warranty such damages as he has sustained, although he as to the quality of the iron, may recoup for has used the iron without offering to return it."

Other cases adhering to this rule are Stark Bros. Nurseries & Orchards Co. v. Mayhew, 160 Mo. App. 60, 141 S. W. 433; Grisinger v. Hubbard, 21 Idaho, 469, 122 Pac. 853, Ann. Cas. 1913E, 87; J. Rosenbaum Grain Co. v. Pond Creek Mill & Elevator Co., 22 Okl. 555, 98 Pac. 331; Graff v. Osborne, 56 Kan. 162, 42 Pac. 704.

The case of Williams & Co. v. Miller & Co., 1 Wash. T. 88, cited by respondent, does seem to support its contention that the acceptance and use of goods estops the vendee from showing that they were not what he contracted for. But from the facts in that case it does not appear whether or not there was there was any provision in the contract for any warranty of the goods sold, or whether inspection, either of which conditions would change the rule; and, if that case could be construed as supporting respondent's conten

tion, it has been impliedly overruled by the

Tacoma Coal Co. and Dickinson Cases, supra, in so far as it attempts to hold that a vendee is liable for the contract price of goods when he has accepted goods inferior to those described in the contract.

The case of Childs Lumber Co. v. Page, 28 Wash. 128, 68 Pac. 373, holds that, where a party does not object to materials furnished them to be used in the building, he cannot for the construction of a building, but allows ground that they were inferior. But the conthereafter refuse to pay for them on the tract in that case provided for an inspection on the part of the vendee.

the rule where an inspection or test is pro[4] There is a well-defined distinction in vided for in the contract, which was noticed by us in Hurley-Mason Co. v. Stebbins, 79 Wash. 366, 140 Pac. 381, L. R. A. 1915B, 1131. In that case we said in part:

"The authorities cited by the respondent are clearly distinguishable from the case here. In

*

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3938-3943, 4023, 4024; Dec. Dig. 997, 1003.]

property, the court points out the fact, which we have also noted, that this rule does not apply in cases of express warranty of quality."

Schopp v. Taft, 106 Iowa, 612, 76 N. W. 843, cited by respondent, sustains this doctrine, and holds that, in the absence of a warranty, when goods are tendered by the seller in performance of an executory contract of sale, and accepted by the buyer after an opportunity of inspection, without objection, the purchaser is liable for the price agreed upon.

In Yeiser v. Russell & Co. (Ky.) 83 S. W. 574, relied upon by respondent, the court said:

"There is no better settled principle of law than that, if a vendee accepts goods delivered under a warranty of quality, or retains them after the discovery that they are not the articles purchased, and fails to give notice within a reasonable time that he declines to receive them, because not in conformity with the contract, or exercises ownership over them, he cannot thereafter refuse to pay for them."

While this case holds that the vendee will have to pay for the goods, it does not hold that he has to pay the contract price, or that he cannot recoup damages for the difference between the contract price and the price of the goods actually delivered. In fact, in this very case the vendee did file a counterclaim for damages accruing from the failure of the vendor to deliver the goods he contracted to deliver, and a judgment for $40 was entered in favor of the vendee, and the vendor took nothing. The right of a vendee when sued for the purchase price of goods to show that the goods received were not as contracted for is well established. Tacoma Coal Co. v. Bradley, supra, and Dickinson Fire, etc., Co. v. Crowe & Co., supra.

Department 1. Appeal from Superior Court, Spokane County; H. L. Kennan, Judge.

Action by E. M. Skoug against John M. Downs and another. From a judgment for Affirmed. plaintiff, defendants appeal.

D. R. Glasgow, of Spokane, for appellants. Zent, Powell & Redfield, of Spokane, for respondent.

PER CURIAM. No question of law is involved in this case. It was tried by a jury. There is testimony to sustain the verdict. In such cases this court will not inquire into the preponderance of the evidence, interfere with the verdict, or with the judgment of the trial court in denying motions for directed verdict, judgment non obstante veredicto, and for a new trial. We interfere in jury cases only when it can be said that there are no facts which will support the legal conclusion that a judgment should be rendered.

A part of a real estate commission which respondent claims and which is the foundation of his suit was taken in the form of a promissory note which was discounted by appellants. It is contended that in any event respondent's judgment must be diminished Whether reto the extent of the discount. spondent was bound to lose the discount or any part of it was for the jury. The judgment is affirmed.

SUMNER v. GRAYS HARBOR RY. & LIGHT CO. (No. 12913.) (Supreme Court of Washington. Jan. 4, 1916.) 1. CARRIERS 318-SETTING DOWN PASSENGERS-NEGLIGENCE.

Evidence, in a passenger's action for perstreet car, apart from any negligence of the consonal injury while alighting from defendant's ductor in failing to warn her that the car was still in motion, held not to show any negligence on the part of the defendant.

Cent. Dig. 88 1270, 1307-1314; Dec. Dig. [Ed. Note.-For other cases, see Carriers,

concur.

SKOUG v. DOWNS et al. (No. 12806.) (Supreme Court of Washington. Jan. 6, 1916.) APPEAL AND ERROR 997, 1003-REVIEWVERDICT-DIRECTION OF VERDICT.

Where there is testimony to sustain the verdict, the appellate court will not inquire into the preponderance of the evidence or interfere

picked up, stepped from the car while it was in motion, slowly coming to a stop, there was no negligence on the part of the conductor in failing to warn her that the car was in motion. [Ed. Note.-For other cases, see Carriers, Cent. Dig. $$ 1216, 1218, 1224, 1226-1232, 1234-1240, 1243; Dec. Dig. 303.]

Department 2. Appeal from Superior Court, Grays Harbor County; Mason Irwin, Judge.

Action by Ethyl Sumner against Grays Harbor Railway & Light Company. Judgment for plaintiff, and defendant appeals. Reversed, and case dismissed.

Bridges & Bruener, of Aberdeen, for appellant. F. W. Loomis, of Aberdeen, for respondent.

PARKER, J. The plaintiff seeks recovery of damages which she claims as the result of personal injuries caused by the negligence of the defendant's servant while she was alighting from one of its street cars. Trial before the court, and a jury resulted in verdict and judgment in favor of the plaintiff in the sum of $208.36, from which the defendant has appealed. The principal contention of counsel for appellant is that the trial court erred in denying their motion for directed verdict in appellant's favor, made at the close of the evidence for the plaintiff and also at the close of all the evidence.

At about 9 o'clock on the evening of November 11, 1914, the respondent was a passenger on one of appellant's street cars in Aberdeen. She was on her way home, expecting to leave the car at Washington street, at which point she usually left the car when returning to her home from the business portion of the city. It will be conducive to accuracy to tell the story of the incidents immediately preceding the accident in respondent's own language. She was asked and answered in her testimony as follows:

car.

"Q. When you got on the Heron street car did you tell the conductor where you wanted to go? A. Not when I got on. Q. Did you later? A. I think when he called Washington street I just nodded my head at him. * * Q. Always got off at Washington street? A. While I was living in that part of town I always got off at Washington street. ** Q. How did you know it was your destination? A. He called Washington street. Q. Where was he when he called the street? A. If I remember right, I think he was about in the middle of the Q. When did you get up? A. When I thought the car was about where I would get off; slacking up about enough. * * Q. Did the conductor go out ahead of you or behind you? A. He went out, and then I got up and went out after him. Q. Where was the conductor when you went out? A. He was in the vestibule. * Q. What direction was he facing? Toward you or facing some other A. He had turned around to pick up my suit case, and he would really be facingI can't tell the directions in Aberdeen; facing towards the brewery out that door of the car. Q. Was he picking up your suit case as you came out of the car? A. As I stood in the door. Q. As you came up to the door, what direction was he facing? A. Facing me. Q. Did you say

suit case. Q. Where was the suit case? A. Setting in the vestibule. Q. Where with reference to his position? A. Sitting right at the back up as close to the rear of the car as could be. Q. Sitting behind him or beside him or in front of him? A. I think it would be at the side of him. Q. And then what did you do? A. The last I can remember I went and took hold

of the handle on the door to step out, and that is the last I can remember then. Q. Did he say anything to you about the car not having stopped? A. I didn't hear him. Q. Why did you get off the car when you did? A. Well, I thought the car had stopped, and I was supposed see that it had not stopped? A. No; it had to get off when the car stopped. Q. Could you stopped apparently to me. The fog was so thick-I didn't feel any motion of the car. Q. Was the fog any thicker than usual on that night? A. Yes, sir; very thick. * * * Q. You could see just as well as if you had been outdoors all the while? * A. Well, I wasn't outside of the car when I last remember. That is, I wasn't out onto the pavement. The last I can remember is taking hold-just as I down onto the first step. Q. Did you see anyreached for the handle of the car and stepped thing that night? Could you see the objects on the street, or anything, that night? A. Not plain. Q. Did you wait at the vestibule for any length of time, for a moment? A. I hesitated there. I thought he would get the suit case picked up. Q. The car was still in motion at that time? A. It must have been. Q. You knew it was still going? A. Yes, while I was standing in the door. Q. You say that you stepped out and took hold of the handle of the door, was it, or of the steps? A. Just right there as you step out. Q. When did you ask the conductor for your suit case? A. Just as I stood in the vestibule door. As I went out I looked where it was left, and it was gone. Just then I said to him: "That is my suit case.'

*

* *

Q. As the conductor turned around in a southerly direction over towards the brewery to get your grip, you, thinking the car had stopped, stepped off the car? A. I don't know whether stepped off or fell off. The last I can remember is when I took hold of the handle. Q. And the conductor at that time was just turning around getting the suit case in the back of the vestibule? A. Yes, sir. * * Q. You say you don't remember after you stepnight. You say it was still in motion? A. It ped off, fell off, or whatever happened that must have been, but I thought it was not. I didn't remember anything until I got in my house."

[1] Other evidence shows that respondent stepped or fell to the ground while the car was moving slowly, and that it thereafter moved some 10 or 12 feet before coming to a full stop. It also appears that the car was possibly a few feet beyond the usual stopping place when it came to rest. It does not appear, however, that there was any difference in the surface of the street at any point alongside of the track at or between the usual stopping place of the car and the place where it actually did stop, assuming that it really passed the usual stopping place. So, so far as the surface of the street is concerned one place was as safe to alight as another within these limits. There were no gates or doors at the sides of the vestibules of the car for the conductor to open or close, as in some cars. There was no jerk or sudden acceleration of speed of the car which might throw one off their balance or furnish the least

coming to a stop. There is nothing in the evidence indicating that respondent was not in full possession of all her faculties, both mental and physical. She was of mature years. This version of the facts we think is as favorable to respondent as the evidence will admit of.

[2, 3] It seems clear to us that there is no possible ground of negligence on the part of appellant upon which the respondent can recover, except it might be said that the conductor was negligent in failing to warn her of the fact that the car had not stopped when she stepped off. Manifestly, there was no affirmative act of negligence whatever committed by appellant, or any of its servants, contributing to respondent's injuries. Counsel for respondent call our attention to a number of decisions holding that it is not contributory negligence, as a matter of law, on the part of a passenger, when a station or stopping place is announced, for him to get up and proceed to the platform with a view of alighting. These decisions are of no aid here. Other decisions render it plain that such an announcement is not of itself an invitation to a passenger to alight before the train or car comes to a full stop. So the fact that the conductor announced Washington street as the stopping place, then being approached, and that respondent in response thereto got up and proceeded to the platform, argues little or nothing here. Such facts do not show an invitation to respondent to alight before the car came to rest, nor do they show that the conductor had any such intent, nor do they argue that the conductor had any reason to believe that the respondent would attempt to alight before the car came to rest. According to the respondent's own testimony, she was standing in the doorway, and directed the conductor's attention away from her to her suit case, and saw him partly turn to pick it up immediately preceding her stepping off the car. The real question is, conceding all these facts in the light most favorable to respondent's contention, Was the conductor negligent in failing to warn respondent that the car was in motion? We think it must be decided as a matter of law that he was not negligent in that respect.

firmative negligent act on the part of the company contributing to the injuries for which damages were claimed. We have no such condition here.

In Morris v. I. C. R. R. Co., 127 La. 445, 53 South. 698, 31 L. R. A. (N. S.) 629, there were involved conditions similar to those before us. In answering contentions of substantially the same nature as here made, Chief Justice Breaux, speaking for the court, observed:

"The train was still in motion. Plaintiff testified that it was in motion, but that he was not Did it not devolve upon him to satisfy himself aware of it at the time. The question arises: before alighting that the train was standing ready to permit passengers to alight? If a passenger, who has every reasonable opportunity to assure himself that the train is at full stop, fails to make inquiry, he cannot hold others liable for damages in case he alights while it is in motion and is hurt. There were lights at the jects, although it was in the night, whereby it depot. Near the depot there were visible obwas possible to satisfy himself that the train was still moving. Besides, the motion of the car is of itself a warning that the train is still tiff's position is that there was negligence on moving and has not come to a full stop. Plainthe part of the flagman, who should have warned him of the danger and should have notified that would have been a very proper act on the him not to attempt to alight. Unquestionably part of the flagman. The question is whether the company is liable for the failure of its flagman to thus notify and warn the plaintiff. That is not the trend of the decisions. * The flagman had seen plaintiff pass him. He was standing behind him on the steps. He, the testimony states, had no reason to infer that plaintiff would seek to alight at that particular time. It happens (it is within common knowledge) that passengers frequently step down to that step, while on their way to alight, without attempting to step off before the car has stopped. the flagman had invited the passenger to step We are not led to infer from the testimony that off. It is true, as before stated, that at about the time the whistle sounded for Kentwood, he There is not in this announcement an invitation announced that the next stop was that place. to alight before the train has stopped. The following is from the text of Thompson on Negligence, vol. 3 (2d Ed.) § 2845: Ordinarily a to assist adult passengers who are in apparent railway carrier of passengers is under no duty good health and possession of their faculties to get on and off its vehicles or to find seats for them; but its duty is limited to giving them a reasonable time and opportunity to do so without assistance, and this is especially true where there are no special sources of danger.'"

In Armstrong v. Portland Ry. Co., 52 Or. 437, 97 Pac. 715, a situation quite similar to this was involved. The plaintiff, arising from her seat and going to the platform upon an announcement of the street she expected to alight at, stepped off the car before it came to rest, there being no invitation for her to do so. Holding that there was no negligence upon the part of the conductor, Chief Justice Bean, speaking for the court, observed:

cessity, or seeming necessity, for so doing, and that she was not advised or requested to do so