Richardson v. Dunlap

Per Ouriam. The record contains no bill of exceptions, and hence it is impossible for this court to review [272] the question of fact presented by the second assignment of error. Among other findings of fact the court found: “That said furnace has never worked properly, but the same is defective in draft and smoke, and consequently defective in heating capacity, and that it is not satisfactory to the defendant, and never has been, and that the defendant has repeatedly notified said Chase of these defects, as well as the plaintiff in this action, and that they have promised to remedy the defects, but have failed to do so.” It is contended that the facts embraced in this finding are not equivalent to a notification that the furnace was at the plaintiff’s disposal, or that it could be removed from the defendant’s house. The defendant had a reasonable time to inspect the furnace, and if it did not work successfully and to her satisfaction it was her duty to notify the plaintiff and request it to remove the same from her house, for without notice to remove the furnace plaintiff might well believe defendant had elected to retain it, although some defects were observable. While it may be doubted whether the foregoing finding shows of itself a sufficient observance of this duty by the defendant, it will be observed that the court made in addition thereto the following: “Fifth, that defendant has never accepted said furnace for the reason of said defects, and has never been satisfied with the same. ” Acceptance is a question of fact, and the jury (or court) is to determine whether under all the circumstances the acts which the buyer does or fails to do amount to an acceptance (Benjamin on Sales, § 142), and the court having found that the defendant never accepted the furnace, this finding will, in the absence of a bill of exceptions, be deemed conclusive upon the question. The court has found upon all the issues presented by the pleadings, and these findings support the judgment; it follows that it must be affirmed, and it is so ordered. Affirmed.