This action was founded, upon the express contract between the parties, which was to the effect that defendant should purchase at a specified price the undamaged portion of plaintiff’s crop. This contract was never modified, except by waiving the condition that before delivery the damaged portion which was not purchased should be separated from the undamaged, and that in lieu thereof the whole might be transmitted to defendant’s warehouse in Edgerton, and the undamaged tobacco there separated, and the amount ascertained. In this modification there was no agreement on the part of the defendant to take or pay for any other tobacco than that originally contracted for. The parties made no stipulation whatever with reference to such damaged portion — -whether because it was deemed of so trifling value as not likely to compensate the plaintiff for taking the whole tobacco back to his farm and sorting it, or to pay added cost of transportation and attention thereafter. Upon such sorting, it appears hy undisputed evidence that the amount of undamaged tobacco was less than the amount for which defendant has paid. From this results logically the conclusion reached by the trial court — that he owes plaintiff nothing upon the express contract, having paid for all that he contracted to purchase and has received thereunder. This view *665of the rights of the parties is in no wise in conflict with the doctrine established by many cases in this court — that one to whom is tendered, under an executory contract, property which does not comply therewith, must notify the deliverer that he does not receive it as satisfying the contract, either at the time of the delivery, or as soon as, by the exercise of reasonable diligence, he can ascertain the defects. Locke v. Williamson, 40 Wis. 377, 381; Bostwick v. Mutual Life Ins. Co., ante, p. 392, 89 N. W. 538; 92 N. W. 246. In the present case the mass of tobacco was not delivered as satisfying the contract, but merely in order that the defendant might select therefrom the contract commodity. Neither is it a case of alleged breach of warranty. The purpose of the passing of possession was not for delivery of a warranted commodity, but of a mass including the contract article, merely for the purpose of enabling the identification and separation thereof. Of course, when the identification was completed, and it was found that there remained a quantity of damaged tobacco which defendant had never purchased, that remained the property of the plaintiff, unless, indeed, there could be spelled out of the transaction a purpose to abandon it entirely by reason of its trifling value, and the burden of expense and labor imposed upon the defendant — a question not involved in this case and which we do not decide. If it was the property of the plaintiff, and was of value, it was, of course, subject to his disposal. The defendant had made no agreement either to return it to him, to dispose of it for him, or to purchase it from him. If, thereafter, the defendant so dealt with that damaged tobacco as to become liable upon implied contract to the plaintiff, that would be a distinct and different cause of action from the one sued on here, and a cause of action in no wise suggested by the complaint.

A request was made for leave to amend so as to state a cause of action quantum meruit which might have supported a recovery for this damaged tobacco; but such request did not *666come until the case had been tried through, both parties had rested, and defendant’s motion for direction of a verdict had been argued. While it was doubtless within the power of the court to have permitted such an amendment, we cannot deem the refusal thereof an abuse of judicial discretion. It was a claim in no wise suggested in the action originally brought, and for the trial of which defendant had prepared. It in* volved several questions of fact, as to which, doubtless, defendant’s evidence must be brought from Edgerton to Viro-qua, and it was a cause of action which the plaintiff might bring notwithstanding the decision in this case, all of which were cogent reasons for declining to allow the final disposal of this action to be interrupted in order to consider that, claim.

We are convinced that the trial court committed no error in directing a verdict in favor of the defendant.

By the Gourt.- — Judgment affirmed.