Brown v. Foster

This action is for damages in not delivering to the plaintiff at Olive Hill, Kentucky, an engine, boiler and saw-mill, with the necessary appliances theretofore contracted' to be supplied, set up and put in running order by the defendants. The defendants answered, alleging a due performance of the contract on their part, an acceptance of the machine by the plaintiff after inspection, trial and examination, and sought to recover by way of counter-claims: First, the price of the boiler, engine, etc.; and, second, the price of other goods, wares, etc., sold by them to the plaintiff. The questions upon this appeal are raised upon the plaintiff’s case. Upon the facts found by the referee the action was clearly maintainable unless the performance tendered by the defendants was in fact accepted in lieu of that actually stipulated for. The referee finds that the articles described in the complaint were, in professed compliance with the contract, delivered to the plaintiff in June, 1883, but that “ they did not as a whole work properly and did not meet the requirements of the contract.” From that time there was fault finding on the part of the plaintiff and complaint, at one time that the mill “ is wrongly constructed from one end to the other,” and at another time that it “ is such a grand failure that it will never answer our purpose.” But on the twenty-fifth of June, after in substance rejecting the mill as unsatisfactory, the plaintiff writes to the defendants, “ will you.permit me to use your mill for cutting 200,000 to 300,000 feet of small oak and maple, and beech logs, or shall I hire a portable mill at your expense to do this work,” and the defendants at once replied, “ use the mill; will have everything in order soon.” Complaints however continued, and on the 21st of July, 1883, the plaintiff said, “ I cannot accept the mill, nor

It is obvious that prior to the first of September, or the visit of the defendants’ manager to the plaintiff’s works, there had been such a positive and unqualified rejection of the machinery as not conforming to the contract as would have required the defendants to retake it, or incur liability for the risk and expense of storage, had that been insisted upon. The articles were up to that time their property. The use of the machinery was by their consent, and not in the exercise of any right acquired by the plaintiff, as owner. That consent, however, expired with the visit of the manager to the plaintiff’s works and his alteration of the machinery, and that time may be regarded as the period of attempted performance on the defendants’ part. The plaintiff then became subject to the general rule that one who seeks to reject an article as not in accordance with the contract, must do nothing after he discovers its true condition, inconsistent with the vendor’s ownership of the property. He would, in such a case as the present, be entitled to a reasonable time for examination; long enough to put the machinery in motion and see it operate, and he might for that purpose do with it -whatever was necessary, and if, after such examination, without dealing with it in any other way or for any other purpose, he rejected it, acceptance

could not be implied. The evidence in this case, however, permits an inference that the plaintiff exercised a dominion over the machinery inconsistent with ownership in the defendants, and consistent only with title as well as possession in himself. He used the machinery in the prosecution of his business, and although complaining did not intermit its use. Knowing its defects he continued to run it. His intent in so doing may be gathered from his acts as well as from his words, and it cannot be said as matter of law those acts do not afford substantial proof of an acceptance, not for the purpose of examination, but for use. The complaints, continued to October tenth, but so did his use of the machine, and later until ¡November twenty-sixth, when the work on hand having been completed and the season over, the machinery was uprooted and stored with notice to the defendants. If these things had been done at the moment of discovery that the machinery was not in compliance with the contract, the obligation of the plaintiff would have been discharged. At the time when they were done the right of rescission had been lost. The continued use of the machine in the promotion of his own business interests, with knowledge of its imperfections, was an unequivocal act of acceptance which no words of his own could qualify. (Reed v. Randall, 29 N. Y. 358 ; Beck v. Sheldon, 48 id. 365 ; Dutchess Co. v. Harding, 49 id. 321.)

The cases cited by the learned counsel for the appellant have been examined. They require no other conclusion than that reached by the referee. The machinery was to be of a certain description, to be manufactured by the defendants, sold and delivered to the plaintiff at a place named, and put in running order. Machinery answering that general description was furnished at the place named, set up and put in running order. The question, however, remained whether it was such, or in such condition and of such character as the purchaser was bound to accept, or whether anything remained to be done for the purpose of putting it into that state. That condition, or if it did not exist, the performance of those things, was a condition precedent to the vesting of the property. "Until then the machinery was not in a deliverable state. It might not be ascertained upon inspection; it could be ascertained upon trial. Upon trial, as we have seen; defects at once appeared, but the consent of the defendants excused the plaintiff from. at once rejecting the machinery. But supposed improvements were made, or at least adjustments. Another trial was had. Then it was the duty of the vendee to act promptly. The cases cited by the appellant show this, and also that the

The judgment appealed from should be affirmed.

All concur.

Judgment affirmed. ■