| Ill. App. Ct. | Jul 27, 1887
The contract created by the giving and acceptance of the written order of June 28, 1883, was an executory contract for the manufacture and sale on the part of the defendant below, for and to the plaintiff, of the articles mentioned of a particular kind and description, and on the part of the plaintiff below to accept and pay for them at the price stated.
In such case the law is well settled, that it was a condition precedent to the seller’s right to the price, that the articles the defendant had delivered under such contract should answer the description; and there was an implied undertaking on its part that the plaintiff—the buyer—should have reasonable time and fair opportunity to examine the articles. But it is likewise well settled that if the buyer would rescind the contract and recover back the price paid, on the ground that the articles were not of the quality or description of those purchased, notice should have been given within a reasonable time. Wolf v. Dietzsch, 75 Ill. 205" date_filed="1874-09-15" court="Ill." case_name="Wolf v. Dietzsch">75 Ill. 205; Shields v. Reibe, 9 Ill. App. 598" date_filed="1882-01-04" court="Ill. App. Ct." case_name="Shields v. Reibe">9 Ill. App. 598, and authorities there cited.
The evidence shows without conflict that the plaintiff below had reasonable time and fair opportunity to examine the articles in question, and that upon such examination it expressly accepted twenty of them as answering the description in the contract, and five being found to be defective, the plaintiff made a new bargain therefor and took them as they were at half price. In the absence of fraud or latent defects, the acceptance of an article sold upon an executory contract, after an opportunity to examine it, is a consent and agreement that the quality is satisfactory and as conforming to the contract, and not only bars all claims for compensation for any defects that may exist in the article, hut necessarily also bars the right of rescission. Gaylord Manufacturing Co. v. Allen, 53 N.Y. 515" date_filed="1873-10-07" court="NY" case_name="Gaylord Manufacturing Co. v. . Allen">53 N. Y. 515; Gurney v. A. & G. W. Ry. Co., 58 N.Y. 358" date_filed="1874-09-29" court="NY" case_name="Gurney v. Atlantic & Great Western Railway Co.">58 N. Y. 358, 364.
There was no evidence or issue of fraud as respected the contract or said acceptance. The second instruction on behalf of plaintiff below purported to instruct the jury upon all of the elements of plaintiff’s cause of action and right of recovery, and contains no hypothesis respecting the examination and acceptance of the articles in question by plaintiff on October 29, 1883, or at any other time, or respecting any latent defects in the articles, or of notice to the defendant within any reasonable time.
As the case stood upon the evidence, that instruction was substantially defective, and could not have been otherwise than prejudicial to the defendant.
The defendant offered upon the trial communications between the parties occurring prior to June 26,1883, for the purpose of showing, as counsel stated, that the material, or metal, out of which the frog points were to be made, was not intended to be of cast steel, but of a material of defendant’s own production by secret process. This evidence was excluded, and error is assigned upon it.
We are of opinion that defendant, by the averment in the special plea and second rejoinder, was precluded from making that issue. But, for the error in said instruction, the judgment will be reversed and cause, remanded.
Reversed and remanded.