phrase in question does, must be construed to include contingencies only of a like nature, in the sense of direct physical preventives of some sort, The words employed do not comprehend stagnation of business because of economic unprofitableness and other such indirect non-physical non-physical causes. In fact, every excuse for non-compliance specified by the contract, whether affecting what the writing calls "normal conditions," the facilities of the seller, or the stoppage of the plant or business of the buyer, has the aspect of a physical preventive with a direct effect, as distinguished from more abstract economic causes that may influence managerial policy, which, in turn, may affect the operation of the plant or business in question.

The word "conditions," in the phrase “normal conditions," at the beginning of the eighth section, when read in connection with what immediately follows it, plainly means physi

cal conditions affecting the industry in question, and not general economic business conditions; though, so far as the present contract is concerned, a "business depression" would not be other than a "normal condition". This being the case, even if the first part of the eighth section were read in connection with the ninth, our ultimate conclusion would be the same that the court below erred in treating the business depression here relied on as releasing the defendant from its obligation to accept and pay for the coal tendered by plaintiff.

All of the cases cited by both sides can be distinguished on their facts from the present one, and it would serve no good purpose to discuss them in particular; suffice it to say, we find no ruling therein which conflicts with the views here expressed.

The assignments of error are sustained, and the judgment is reversed, with a venire facias de novo.

In the fall of 1919 a salesman employed by the plaintiffs, who were wholesalers of shoes, sold an order of shoes to the defendants, who were retail merchants. The shoes were to be shipped in February, 1920. Shipments were made in February and March. These shipments were received, accepted and paid for. Another consignment was shipped on April 28th and received on May 1st.

The goods were placed in the defendants' store, but were not opened. The defendants did not notify the plaintiff's

that the goods had been received and had been rejected. The shoes remained in the store until July, when the defendants shipped them back to the plaintiffs. The plaintiffs promptly returned the goods to the defendants.

The plaintiffs brought this action to recover the balance of the purchase price. The defense was that the goods were not delivered at the time and place required by the contract and that the prices were not such as were guaranteed by the salesman of the plaintiffs at the time of the purchase.

Upon appeal from a judgment for the defendants it was held that it was the duty of the defendants, upon receiving the last consignment of shoes, to accept them, or, if they intended to reject them, to notify the plaintiffs of that fact and return the shoes or offer to return them within a reasonable time after they were received. It was further held that sixty days was, as a matter of law, an unreasonable time for defendants to retain the shoes without notifying the plaintiffs of their intention to reject the goods. The defendants' failure to give timely notice of the rejection of the shoes made them liable for the price of the goods, and the shoes became theirs. Accordingly the judgment appealed from was reversed.

Action by Frank Hellmers and Edgar Bettman, copartners doing business as Hellmers & Bettman, against Joseph Norris and John A. Downard, copartners doing business as Norris & Downard. Judgment for defendants, and plaintiffs appeal. Reversed.

M. J. Hennessey, of Augusta, for appellants.

C. R. Barker, of Brooksville, for appellees.

of April and received on the first day of May, and placed in the store of appellees, but were not opened. The price of shoes was then fluctuating. Appellees did not notify the salesman or wholesale merchants from whom they bought the goods that the last consignment had arrived and had been rejected or refused, but allowed the shoes to remain in the store without notice to appellants from the first day of May until some time in July, when appellees shipped the goods back to appellants. When they arrived at appellants' place of business they returned them to appellees at Brooksville, where they have since remained, as appellees say, subject to the order and for the use and benefit of appellants.

This suit was commenced by Hellmers & Bettman against the retail merchants to recover the balance of the purchase price, $231, with interest from June 28, 1921. Appellees answered that the goods were not delivered at the time and place required by the contract and that the prices were not such as were guaranteed appellees by the salesman of ap

Judge Sampson

SAMPSON, C. J.-In the fall of 1919, a salesman representing Hellmers & Bettman, a shoe concern, sold to the appellees, Norris & Downard, retail merchants in Brooksville, a bill of shoes amounting to $601, to be shipped in February, 1920, and part of the shoes were shipped by appellants and received by appellees in February, 1920, and another consignment in March of the same year, and these were received, accepted, and paid for by appellees. Another consignment was shipped on the 28th

A trial resulted in a verdict for the defendants, Norris & Downard, and Hellmers & Bettman pray and appeal.

It was the duty of the retail merchants, upon receiving the last consignment of shoes, to have accepted them, or, if they intended to reject them, to have notified the wholesale merchants of this fact and returned the shoes or offered to return them within a reasonable time after they were received at the store; and, if they failed to do so, the retail merchants were liable for the price of

a

the goods, and the shoes became theirs. The only question, therefore, for decision is, Did appellees, Norris & Downard, return the goods within reasonable time? Ordinarily a shipment of shoes of the size of the one in question is easily handled and may be prepared for shipment and delivery to a common carrier within a few hours at most. Appellees insist, however, that they retained the goods expecting the salesman of appellants to call at the store and to then adjust the matter with him, but that no salesman came, and, after retaining the goods for more than 60 days, they returned the shoes. It is not contended by appellees that they notified the wholesale merchants of their intention to reject the shipment or that they held the last ship ment of the shoes subject to orders of the wholesalemen, but they now insist they returned them within a reasonable time, and that this was a question for the determination of the jury, and was concluded by the verdict in favor of the retail merchants.

With this insistence we cannot agree. Sixty days is hardly a reasonable time for a retail merchant to notify the wholesale merchant of the former's purpose to refuse the shipment and return the goods. This fact is so manifest that it must be held as a mater of law that the time was unreasonable. This being so, it was the duty of the trial court to have peremptorily directed the jury to find and return a verdict for the wholesale merchants. After the verdict, appellants entered a motion for judgment. notwithstanding the verdict, but this was also overruled, and

this was error. Appellees Downard and Norris, accepted a shipment in March, which was due in February, and paid for the goods without complaint. The next shipment soon followed but was rejected. Had the retail merchants at that time notified the wholesale merchants that they would not receive another consignment they would have had the law on their side, but they neglected to do so, and on April 28th the wholesale merchants shipped the remainder of the goods. Notwithstanding this late shipment, as it appears from the evidence of appellees, they intended to retain the goods if they could make satisfactory adjustment with appellants, but they did not notify appellants of this purpose or take any steps to bring to the wholesale house knowledge of their intention to reject the shipment if an adjustment was not had, but allowed the goods to remain in their store for more than 60 days without intimation that they intended to return them. Certainly under such circumstances the wholesale merchants had a right to believe that the goods had been accepted by the consignee. In the meantime the prices of shoes had changed, thus affecting the statu quo of the parties. of the parties. If he would rescind, the retail merchants must act promptly and return the goods. If he does not act within a reasonable time, he will be presumed to have accepted the shipment and will be liable for the price. For the reasons indicated, the appeal is granted, and judgment reversed, for proceedings consistent herewith.

Judgment reversed.