¶1As the facts are stated in the bill of exceptions, the plaintiffs applied to the defendant Nonnemacher, at Winona, and solicited him to buy tobacco from them, representing to him that they could furnish him a “tip-top article of number one tobacco,” of certain specified kinds. Nonnemacher, relying on the representations, gave plaintiffs his verbal order for a certain quantity of the kinds and quality mentioned, to be shipped by plaintiffs at Milwaukee, to him at Winona. No tobacco was delivered or exhibited to him, at the time of the order. The quantity ordered was shipped to him, and by him received, examined and kept, without any objection as to the kind or quality.
¶2This is an executory contract to sell by description. Under such a contract, the seller must, in performance on his *490part, furnish goods of the kind and quality called for by the description, or the purchaser need not receive them. Chanter v. Hopkins, 4 M. & W. 399 ; Nichol v. Godts, 10 Exch. 191; Shepherd v. Kaine, 5 B. & Ald. 240 ; Taylor v. Bullen, 5 Exch. 779 ; Bannerman v. White, 10 C. B. (n. s.) 844; Howard v. Hoey, 23 Wend. 350.
¶3That the goods must answer the description is a condition precedent. The obligation on the seller is not, in the absence of an express warranty, properly that of warranty, although it has often been, rather loosely, spoken of as such. The seller may, upon such a sale, as upon a sale inpresenti, expressly warrant their quality, and when he does, his liability will, of course, be the same as under a warranty upon a sale in presentí.
¶4Upon a sale by description, without express warranty, the purchaser is entitled to a reasonable time and opportunity, after the goods are sent him, to examine them, and determine if they are in accordance with the contract. When he has ascertained the quality, he must notify the seller of any objection he may have, so as to give the seller an opportunity to take them back, or if he keeps them without objection, after he has ascertained the quality, he will be deemed to have acquiesced in it, as in accordance with the contract. Fisher v. Samuda, 1 Camp. 190; Milner v. Tucker, 1 C. & P. 15 ; Cash v. Giles, 3 C. & P. 407 ; Sprague v. Blake, 20 Wend. 61; Hargous v. Stone, 5 N. Y. 73; Shields v. Pettee, 2 Sandf. 262 ; Reed v. Randall, 29 N. Y. 358 ; McCormick v. Sarson, 45 N. Y. 265.
¶5Nonnemacher, having kept the tobacco after he examined it, and for nearly two years neglected to notify the plaintiffs of any objection as to the quality, must be held to have acquiesced in it. The judgment below is affirmed.