Underwood v. Wolf

Moran, J. The main and controlling question on this appeal is whether the fact that appellants kept and used the machines furnished by appellee after the date when, by the terms of the contract, they were to accept them if the guarantees were then fulfilled, warranted the jury in finding that the said machines were accepted as fulfilling the contract, and whether, if they were so accepted, appellants were prevented from recouping from the contract price, damages for a failure of the machine to meet the guarantees contained in the contract. Appellee’s evidence tended to show that the machines were completed, and were operated by appellants before the 1st of September, and appellants admitted that they continued to use them for the purpose for which they were intended, up to the date of the trial. The court below instructed, in substance, that if appellants accepted the machines, in full discharge of the contract, then they could not recover or set off against the contract price, damages resulting from the failure of the machine to meet the guarantees, and that continued use of the machines, with the knowledge of the defects or imperfections, might constitute an act of acceptance, to be determined by the jury, from all the evidence. . This is not like a case where work is done and materials furnished in the erection or improvement, of a building, or where the machinery is so affixed to the building as to become part thereof, and irremovable. Both parties here treat these machines as removable, and while appellants say that they told appellee to remove them, they also said they would not allow him tp do so unless he would put their packing-house in the same condition in which it was before the machines were put in. It is not seriously contended by appellants that they ever rejected the machines, indeed, their contention is, that they were not, in law, required to do so, but they could retain the machines and. operate them in their business,,and by showing that the machines did not fill the guarantees, might recoup from the contract price their damages. We are of opinion that the guarantees contained in the contract between the parties are not to be construed as continuing warranties of the machines* The machines and apparatus were sold and placed in appellant’s house under the stipulated guarantees, it is true, but it is apparent that the parties contemplated that appellants should have an opportunity to test the machines, and the contract fixes a date when, after such opportunity to test, they should accept the machines, if they fulfilled the guarantees, and pay the contract price. While there was some delay in completing the contract, the evidence shows that appellant had abundant opportunity to try the machines, and that, while they refused to pay for the machines when requested to do so, they continued to use them, and after a time canceled the insurance on them, which had been in the name of appellee, and took policies on them in their own names. When appellants had made a test of the machines, it was their duty to either accept or reject them. When they refused, in words, to accept them, but continued to use them in the prosecution of their business, without permission, though they complained that they did not come up to the guarantee, it can not be said that the machines were rejected, but it was a question of fact for the jury, to be determined from a consideration of appellants’ acts, as well as their words, whether the intent was to accept, and it can not be said, as a matter of law, that those acts do not afford substantial proof of acceptance. The contract in this case is exceptional; it requires an acceptance after time given for a test. If, when the time came for acceptance, appellants were not willing to accept the machines, as complying with the contract, then the alternative they had was to reject them, and if they sought to reject them, they were bound to do nothing with the machines which was inconsistent with appellee’s ownership and right to remove them. The refusal to allow appellee to remove them unless he left the packing-house in the same condition in which it was before they were set up, the use of the machines for months after a fair test had been made and the time for election had passed, and the insurance of the machines in their own names, were, in our opinion, acts of acceptance, which mere words refusing to accept in terms would have but little tendency to qualify. The conclusion of the jury that there was an acceptance of the machines, then, is fully sustained. The guarantees of the agreement being guarantees as to the capacity or performance of the machines, were not, as we have before said, continuing warranties, and whether they were fulfilled was to be determined by the test. The rights of the parties and their duties, after a fair test, were governed by the rule that is applied in executory contracts for the sale and delivery of personal property, which is that the right of the vendee to .recover damages on the ground that the article furnished does not fulfill the undertakings of the contract, does not survive the acceptance of the property of the vendee after the opportunity to ascertain the defect, unless the vendee offers to return the property. He can not receive the property under the contract, retain it after an opportunity of testing it and ascertaining its quality, and recover damages if it differs in performance or description from that called for by the contract. Gaylord Mfg. Co. v. Allen, 53 N. Y. 515; Reed v. Randall, 29 N. Y. 358; McCormick v. Sarson, 45 N. Y. 265; Brown v. Foster, 108 N. Y. 387; Eureka Cast Steel Company v. Morden Frog and Crossing Works, 23 Ill. App. 591. This case is not like Crabtree v. Kile, 21 Ill. 180, or Mears v. Nichols, 41 Ill. 207. In' each of th 'se cases there was a purchase of an article upon an express warranty that it would answer a specific purpose, and not, as here, a sale upon a guarrantee, with a right of test till a specified date, and a requirement of acceptance then, if the warranty or guarantee should be fulfilled. In those cases the title passed to the purchaser by the sale, and was accompanied by a warranty, for the breach of which he might sue; here the title to the machines was not intended to pass until a test had been made, and an acceptance, after test, is an express election to take the title to the machines, and have the benefit of the contract, though the performance or capacity was inferior to that promised and expected. Brown v. Foster, supra. The right to accept after a test was not a right to take title to the machine after a test, and hold the vendor for a failure to furnish the machines contracted for, as upon a sale with express warranty. The instructions given by the court for the plaintiff were correct, and the fact that the court, at the request of appellants, gave to the jury instructions containing a contrary rule, will not avail appellants. The jury in this case followed the correct instructions, and appellants can not assign for error the giving of instructions, whether right or wrong in point of law, which they requested the court to give. It is unnecessary for us to consider the alleged error of the court in refusing to suppress certain depositions. They contain no testimony which could have affected the issues on which the case was determined. • We are of opinion there is no material error in the record, and the judgment will therefore be affirmed. Judgment affirmed.