Ellison v. Creed

WOODWAJRD, J. The plaintiffs in this action succeeded to the business of their father, Thomas J. Ellison, a steam and hot-water heating engineer, who in the fall of 1895 entered into a contract or agreement with the defendant to furnish and erect a hot-water heating apparatus in her dwelling house. The boiler and radiators were put in and connected up, and soon after Christmas, 1895, the fires were started, and the test was made, and, so far as the evidence shows, this test was satisfactory to all concerned. Although there is some evidence that the defendant found some fault with the heating apparatus, there is no evidence in the case to show that she ever repudiated the work, or that she ever ordered or suggested that it be removed. On the contrary, it appears from the testimony of defendant’s witnesses that the heating apparatus was still in her house, and that she continued to use it up to the very day of the trial of this action. In view of this fact, we are unable to reconcile the referee’s conclusions of law “that the said Thomas J. Ellison and the plaintiffs failed to perform said agreement with the defendant,” and “that the defendant is entitled to judgment against the plaintiffs dismissing the complaint, with costs,” with the evidence. We know of no rule of law which permits one person to allow another to enter upon his premises and put in machinery and apparatus for the benefit of the owner, accepting the use of the same, without being liable for the fair and reasonable value of such property. If the defendant had put in a counterclaim for damages due to a failure on the part of the plaintiffs to put in a heating apparatus according to contract, there might be some force in the finding of "the referee that “under said agreement said Thomas J. Ellison did put in said dwelling house a certain steam-heating apparatus and appurtenances, but the same were not capable of heating said rooms, or any of them, according to such agreement”; but what bearing this can have upon the case at bar, where the defendant has accepted and continued to make use of the apparatus after the alleged discovery of the defects, we are unable to understand. “If the fault was trivial, or of such a character as easily to be remedied,” say the court in the case of Chambers v. Lancaster, 3 App. Div. 215, 38 N. Y. Supp. 253 (Mr. Justice Cullen writing the opinion), “the defendant would be justified in using the machines, and not precluded from returning them upon the subsequent appearance or discovery of a gross defect that would render the machines useless, or materially impair their value. ■ But in this case, after the machines had repeatedly broken down in vital parts, and the inadequacy of the machines to perform the specified work had become apparent, the defendant company still continued to use them. This operated as an acceptance.” The like doctrine is asserted in the case of Wiles v. Provost, 6 App. Div. 1, 39 N. Y. Supp. 461, where the court say that: “The vendee is entitled to a reasonable time for examination, but, if he intends to reject the article furnished as not in compliance with the contract, he must not, after such examination, and after discovering its true condition, do anything inconsistent with the vendor’s ownership.” “He would,” say the court in the case of Brown v. Foster, 108 N. Y. [1056] 387, 15 N. E. 608, “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, qnd consistent only with title as well as possession in himself. • He used the machinery in the prosecution of Ms 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.” In the case at bar the alleged defect in the heating apparatus was discovered early in the year 1896, yet at the time of the trial of this action, on the 17th day of February, 1897, the defendant was still using the‘heating apparatus in her house. This use of the apparatus is inconsistent with ownership on the part of the plaintiffs, and establishes an acceptance on the part of the defendant for which she is clearly liable to the plaintiffs. If the apparatus was not such as the defendant contracted for, she might have refused to accept it, or she might have set up a counterclaim for any damages wMch she may have sustained; but she cannot go on using the apparatus as her own, and refuse to compensate the plaintiffs, who have invested their time and money in the property which she has converted to her own use. The judgment in favor of the defendant should be reversed, and judgment for the plaintiffs should be entered, with costs. GOODRICH, P. J., and BARTLETT, J., concur.