123 F. 866 | 7th Cir. | 1903
(after stating the facts as above). The contract of sale was executory, and was conditioned that the machine should run satisfactorily, and that title should not pass until payment. The first question presented is whether there was an acceptance by the buyer of the article furnished. Its mere receipt did not constitute acceptance. Benjamin on Sales (6th Am. Ed.) § 703. Acceptance comprehends both physical receipt and mental assent. The vendee agreed to buy and to pay for the feeder “when machine is running satisfactorily.” The bankrupt had the right of inspection to determine
It may be that in an action brought upon the contract a jury, upon the evidence before us, would find, and would be justified in finding, that the machine in fact worked satisfactorily to the vendee, and that the objection thereto and the refusal to accept were in bad faith, and were pretentious merely; but the fact remains that the bankrupt did refuse from the first, and continued to refuse, to accept the machine. The question is not whether the vendee was justified in its refusal to accept, but whether it did in fact refuse. Rightfully or wrongfully, the bankrupt did insist that the Dexter. Folder Company should furnish another suited to the enlarged folder. The bankrupt, now that the vendor seeks to take back the machine, may not be heard to say that it accepted what it constantly declared it would not accept. It may not be permitted now to take advantage of its own bad faith or fraud. Nor can the receiver of the bankrupt be heard to say that the refusal to accept was arbitrary or capricious, fraudulent and in bad faith, for he stands in this respect in the shoes of the bankrupt, whatever may be his right, with respect to an article delivered and accepted under a conditional sale. The bankrupt having refused to accept, the receiver has no higher right than the bankrupt, and cannot be allowed to assert fraud and bad faith of the bankrupt to work out an acceptance, without which no title passed to the bankrupt. The delivery of the Goldsmith, feeder in part payment was concurrent with the receipt by the vendee of the substituted feeder in question, and before opportunity to test the working of the new feeder. Neither that fact, nor its subsequent sale as old iron by the vendor, affects the question of acceptance by the vendee, and is without controlling force.
This conclusion renders it unnecessary to consider the further question whether—because under the law of the state of Illinois a sale under contract conditioned that no title should pass until payment, the property being delivered and accepted, is constructively fraudulent as to creditors who come armed with execution or attachment (Ketchum. v. Watson, 24 Ill. 591; McCormick v. Hadden, 37 Ill. 370; Murch v. Wright, 46 Ill. 487, 95 Am. Dec. 455; Chickering v. Bastress, 130 Ill. 206, 22 N. E. 542, 17 Am. St. Rep. 309; Peoria Manufacturing Company v. Lyons, 153 Ill. 435, 38 N. E. 661; Hervey v. Rhode Island Locomotive Works, 93 U. S. 664, 672, 23 L. Ed. 1003; Dooley v. Pease, 180 U. S. 126, 21 Sup. Ct. 329, 45 L. Ed. 457), the rule being otherwise in most of the states of the Union (Harkness v. Russell, 118
The decree or order appealed from is reversed, and the cause is remanded, with a direction to grant the prayer of the petition.
