Buck v. Racine Boat Co.

RoseNBERRY, J. The vital question in this case is whether _ or not the evidence is sufficient to sustain the answer to question No. 3 of the special verdict, by which the jury found that the plaintiff accepted the boat delivered to him by the defendant. Ordinarily the question of acceptance is a question of fact to be determined by the jury; but where, as here, there is no conflict in the evidence, the question of whether or not the acts of the plaintiff constituted an acceptance is a question of law. Williston, Sales, § 451 and cases cited; Knobel v. J. Bartel Co. 176 Wis. 393, 187 N.W. 188. The section of the Uniform Sales Act applicable is sec. 1684i — 48: “The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him, and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, .after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them.” In this case the purchaser received the goods on Decern- • ber 11, 1920. He caused the boat to be unloaded from the flat-car and placed in the water and tested. After making a thorough test and careful examination, the purchaser, on' December 16, 1920, wrote the defendant the letter set out in the statement of facts. It is the contention of the respondent that by the writing of this letter and retaining possession of the boat the plaintiff accepted the boat as delivered. With this contention we cannot agree. This letter is notice to the seller that the goods delivered are not in accordance with the [252] contract and a proposal that, if certain conditions are complied with by the seller, certain defects will 'be passed by and the boat accepted. This, instead of being an intimation as claimed that the buyer will accept the goods as delivered, is an intimation that unless the seller conforms to the proposal the goods will not be accepted. At any rate it constitutes no intimation of acceptance. Had the seller accepted the buyer’s proposal and remedied the defects complained 'of, no doubt the buyer would have been bound by his.proposal, but the seller did not pursue that course. The seller totally ignored the proposal and never complied with the buyer’s demands nor attempted to do so. It is said, however, that the rejection was not made within a reasonable time. It appears that the boat arrived on the 11th day of December, 1920, was placed in the water on Sunday, the 12th; that the draft of the boat was determined on the 13th or 14th, and the letter written on December 16th notifying the seller of the defective condition of the boat. The question as to whether or not the buyer notified the seller within a reasonable time was not specifically submitted, but by the instructions was included in the jury’s consideration of question 3 as to acceptance. Under the facts in this case we think it must be said as a matter of law that the letter of December 16th was written within a reasonable time. It is quite clear from the evidence that the examination and inspection of the boat continued during the time after it was unloaded up to or at least prior to the day the letter was written, and there are no circumstances to indicate that there was any delay whatever after the concjition of the boat had been fulty ascertained by the buyer. The jury having found by the answers to questions 1 and 2 that the boat as constructed did not substantially comply with the terms of the contract and the buyer having notified the seller within a reasonable time, such notice having been followed by the letter of January 8th, the plaintiff was within his legal rights [253] in refusing to accept the boat, and he is .entitled to recover the purchase price. . By the Court. — Judgment reversed, and cause remanded with directions to enter judgment as indicated in the opinion.