In an action for goods sold and delivered, the defendant produced evidence tending to show that the goods were by the agreement to be sent to the defendant’s store, and if satisfactory to him were to be paid for, and if not were to remain a few weeks until called for by the plaintiff and otherwise disposed of. The goods were not satisfactory, and were never accepted. The judge was asked to rule that if these facts were found, the verdict must be for the defendant. The judge refused so to rule, and instructed the jury that, if such was the agreement, the defendant was bound to give reasonable notice of his refusal to accept.

A question of fact was thus improperly taken from the consideration of the jury. The defendant contended that the necessity of giving notice was dispensed with or waived by the terms ' of the agreement, but the ruling was that the law still imposed [*23] upon the defendant the necessity of giving it. There was evidence to justify the jury in finding that the defendant was not required to give notice, and the ruling was erroneous. O'Kelly v. O'Kelly, 8 Met. 436. Denny v. Williams, 5 Allen, 1.

Exceptions sustained.