J. L. Owens Co. v. Whitcomb

The following opinion was filed December 5, 1916: Eschweiler, J. Unless the finding to the effect that at the time the plaintiff’s representative was in Eiver Ealls on March 20th it was thereupon agreed that the approval or disapproval of the machine might await the return of the defendant from California has support in the evidence, the case mui^t be disposed of under the rule that a person purchasing such a machine has a reasonable time and no more in which to test the same, and retention after such period is deemed an acceptance sufficient to bind the person so retaining it for the purchase price. An examination of the testimony discloses that such finding must be supported, if suppprted at all, upon the testimony of one Finn, who was employed from time to time by the defendant about the elevator. He said he overheard a conversation between Hebei and Owens, and that Hebei said that he either would not accept the machine or Mr. Owens must wait until defendant came home, and that Mr. Owens said in reply that he would wait until defendant came. Owens positively denies any such agreement, and Hebei, who was admittedly in charge for the defendant, does not himself so testify, his version of the conversation being that he told Owens that he was not satisfied enough with the machine to pay for it and he would have to wait until he could communicate with defendant, and that Owens agreed to do so, and that Hebei did write to Whitcomb and received the telegram given above. The facts and circumstances also clearly indicate that Finn’s version of the conversation was a mistake. The fact that Hebei did write to the defendant and the tone of the telegram from defendant indicate very clearly that Hebei and Whitcomb did not understand that there was [96] any definite agreement to wait. We must therefore hold that there is not evidence to support such finding and it must be set aside. From March 20th on, the machine was used by defendant in its operations in the mill. Such use for that length of time was unnecessary for any reasonable test to be made of the same and must, under the repeated decisions of this court, be considered an acceptance. Kiltgen v. Biever, 162 Wis. 315, 156 N. W. 132; Kelsey v. J. W. Ringrose N. Co. 152 Wis. 499, 140 N. W. 66; Fox v. Wilkinson, 133 Wis. 337, 113 N. W. 669; Graf v. Laev, 120 Wis. 177, 97 N. W. 898; Palmer v. Banfield, 86 Wis. 441, 56 N. W. 1090; Cream City G. Co. v. Friedlander, 84 Wis. 53, 54 N. W. 28; Boothby v. Scales, 27 Wis. 626. The rule of these cases is now embodied in sec. 16S4Í — 48, Stats. The defendant through Nebel claimed an allowance on this machine of $5 for work done in installing the same. This was allowed by the plaintiff. A further claim was made by defendant of $15 for services of a millwright in connection with the installing of the machine or repairing it, but under the testimony it appears that some of the services which the millwright rendered his bill for was for work about the elevator other than in connection with this plant, and there is no satisfactory basis, therefore, for an allowance of anything more than the $5. The judgment shoidd therefore be reversed. By the Oourt. — The judgment of the circuit court is reversed, and the cause remanded with directions to enter judgment in favor of plaintiff in the sum of $420 with interest and costs. A motion for a rehearing was denied, with $25 costs, on February 13, 1917.