320; Whitaker v. Eastwick 75 Penn. St. 229; Carson v. Baillie 19 Penn. St. 375; Hogins v. Plympton 11 Pick. 97; whether or not a sale is rescinded within a reasonable time is a question of law, when there is no dispute as to the facts of rejection: Holbrook v. Burt 22 Pick. 546; Boothby v. Scales 27 Wis. 626; Gammon v. Abrams 53 Wis. 326; ·Cutler v. Hurlbut 29 Wis. 152; Williams v. Porter 41 Wis. 423; Milner v. Tucker 1 C & P. 15; Barnett v. Stanton 2 Ala. 189; 2 Kent's Com. 480; Ward v. Reynolds 32 Ala. 384; Smith y. Love 64 N. C. 439; Wilbur v. Flood 16 Mich. 40; Ilubbardston Lumber Co v. Bates 31 Mich. 158. Griffin, Dickinson, Thurber & Hosmer for appellees. SHERWOOD, J. The plaintiff is located in Philadelphia. Its business, among other things, is the sale of commercial whiting. It is not a manufacturer. The defendant is a corporation in Detroit. Its business is the manufacture of white lead, zinc, putty and similar articles. This action was brought by plaintiff to recover for three hundred barrels of commercial whiting sold to defendant. The contract for the same is in writing, and contained in several letters passed between the parties, in pursuance of which the goods were shipped to defendant on the 31st of August, and 4th and 14th of September, 1882; the purchase price thereof, less freight, being $530.07. The goods were received by defendant at Detroit in due time, the first shipment of one hundred and eighty barrels on the 9th of September after the order was given. The best commercial whiting was ordered, and the plaintiff claims the best was sent, and the proofs tend to show such was the fact, and that plaintiff sold but the one quality. The defendant commenced using the whiting as soon as it arrived, working up two barrels the first day, and from three to four barrels per day until it had used up forty-two barrels, and sold the same out to its customers, who made complaints to defendant very soon after they received the putty manufactured from the whiting. The defendant had in June previous had some of plaintiff's whiting, as the testimony tended to show, and had asked for a rebate on account of its inferior quality. September 21, 1882, defendant wrote to plaintiff : "It [the whiting] is full of sand and grit, and we are constantly having trouble and complaints about the poor putty made from it, and upon adulterating for commercial putty it is well nigh worthless. It bids fair to ruin our putty trade. Don't think we can make any use of it. What are you going to do about it?" To which letter plaintiff replied, September 30, 1882, that this was the same whiting it was shipping throughout the West, with no complaints; that it did not think commercial whiting would stand adulteration, but was satisfied that when ground with linseed oil alone it makes good putty; that it made only one grade of commercial whiting, and that upon further examination it would run all right. On the same day, September 30th, defendant wrote plaintiff: "On the 21st inst. we wrote you about the quality of the whiting you shipped us, and about the trouble we were having with it. If we do not hear from you by October 10th we will store the remaining whiting at your expense and risk." November 24th defendant wrote plaintiff that the whiting was "miserable stuff," and it had stored. two hundred and fifty-eight barrels of it in a storage warehouse, where storage and insurance were running against it, and that they enclosed a bill of the two hundred and fiftyeight barrels and the freight paid on three hundred barrels. The defendant stored the whiting on the 14th day of November, but did not notify the plaintiff until the last-mentioned letter was mailed, to which the plaintiff replied: "You received our best commercial whiting. We do not quote other than commercial whiting, which was our quotation to you, and from the fact of your having received and used the same goods before, should have posted you as to the grade and quality. We cannot agree with you as to its being miserable stuff, and shall hold you to the payment of the bill as invoiced." There is no question but that the defendant's order was for the "best commercial whiting," but it does not appear that there was any particular quality or grade known by that designation. The plaintiff's claim, as itemized under the declaration, was as follows: Aug. 31. 180 bbls. commercial whiting, 25c. each, Sept. 4. 60 bbls. commercial whiting, 25c. each, Less freight $45 00 399 35 15.00 155 91 15.00 133 53 $763 79 233 72 $530 07 The defendant's plea was the general issue, with notice of special defense, claiming damages (1) for payment of freight, $233.72; (2) cost of cartage, storage and insurance, $100; (3) loss of marble dust and oil used with the whiting in the attempt to manufacture putty, $100; (4) injury to the trade of the defendant by reason of the use of said whiting into. putty, $1000; (5) difference in price of four cents per hundred by reason of market sale of class of whiting contracted for at the time. The cause was tried in the Superior Court, before Judge Chipman, by jury, and the defendant recovered the sum of $509.21. Plaintiff asks a review of the case here, and assigns thirty-two errors, the most of which relate to the rulings of the court in receiving or rejecting testimony. From I have examined the correspondence between these parties. with care, as well as the other testimony in the case. these it appears that commercial whiting is an article well known in trade, and that some qualities or grades are better than others, owing to the difference in the quality of the chalk used. This fact seems to have been well understood by the plaintiff. It is referred to in the plaintiff's letter of September 30th, which says: "We make only one grade of commercial whiting, and are just as careful as possible to get it as near as we can. Sometimes chalk varies in quality, which will cause a difference." When the defendant commenced the treaty for the goods, Mr. Rogers, manager for the Detroit company, 58 MICH-3 wrote: "Please quote us 300 to 500 barrels best commercial whiting, delivered in Detroit." Three days thereafter the plaintiff answered: "We are pleased to quote you delivered at Detroit 300 to 500 barrels comrl. whiting, at 56 cts. per 100 pounds; bbls. 25 cts. each." This letter was answered by defendant, in which Mr. Rogers says: "You may enter our order for 300 barrels of your best commercial whiting on the terms named in yours of the 18th inst., and ship it as soon as convenient." It was upon this correspondence that the plaintiff forwarded the goods now claimed for. It seems very clear, I think, that the undertaking on the part of the plaintiff was to deliver at Detroit to the defendant three hundred barrels of the best commercial whiting, at fifty-six cents per one hundred pounds, and twenty-five cents per barrel. The court substantially so charged the jury, and, I think, correctly. Having ascertained the truc construction of the plaintiff's undertaking, the next question was, had the defendant performed his contract; and, if not, was there anything done or omitted by defendant excusing or waiving such performance? Considerable testimony was taken to ascertain the quality of the whiting delivered, and a large number of exceptions were taken to the rulings of the court admitting the testimony upon this point, and tending to show the qualifications of the witnesses or want of knowledge to speak upon the subject; also tending to show the purposes for which commercial whiting is used. Of this character were the various questions raised and rulings made and excepted to, in the plaintiff's assignments of error numbered one, two, three, four, six, seven, eight, nine, ten, thirteen, nineteen, twenty-two, twenty-three, twenty-four, twenty-five, twentysix and twenty-seven. No error, however, is discovered in any of these rulings prejudicial to the plaintiff, and it is not important that they should be considered in detail. Neither was any error committed in any of the charges given by the court, or in the refusals to charge. It was insisted that no question could be made but that the plaintiff was entitled to recover for the barrels; that the contract price for those was separate from that of the whiting. The whiting was the article desired by defendant. The barrels became a necessity in making the transportation and delivery, and were of no consequence to the defendant except in the use made of them in connection with the goods. purchased. They were in fact a part of the goods, and if the defendant could not be made liable for the whiting it could not be for the barrels. We fail to discover any error in the rulings or charge of the court on the subject of damages. It was the defendant's duty to receive and take charge of the goods when they arrived in Detroit, and he had a right to expect that they would be of the quality ordered; and if the plaintiff failed to furnish the article purchased by the defendant, and promised by plaintiff to be the best commercial whiting, but did furnish an inferior quality, and ship and deliver the same to the defendant at Detroit, as and for the goods promised, without notifying the defendant of the inferior quality of the goods, the plaintiff would be liable, unless the defendant chose to keep the goods, for all necessary charges and expenses in testing the article until defendant found out the. difference in quality, and in addition thereto all other necessary, legitimate and approximate damages it sustained, arising directly from the failure of the plaintiff to redeem its promise as to the character of the article delivered. This would include all those expenses incurred in the means taken and things done which would be expected of any careful, prudent business man engaged in the trade under like circumstances. Insurance, freight, cartage and storage paid upon the goods were proper items of damage, and it was not improper to introduce evidence containing the footings of these items as claimed by the defendant. The fifteenth, sixteenth, seventeenth, twentieth and twenty-first assignments of error, all relating to these subjects, cannot, therefore, be sustained. I think the following from the charge of Judge Chipman states the law correctly: "If you find for the defendants, I think they are entitled to what, under the undisputed testi |