176 Wis. 393 | Wis. | 1922
It is the first assignment of error that the court held as a matter of law that the buyer accepted the goods by holding them twenty-five days without notifying the seller that the goods were rejected, and in directing a verdict for plaintiffs.
Where goods are delivered to the buyer which he has not previously examined, he is not deemed to have accepted them unless he has had a reasonable opportunity for examining them for the purpose of ascertaining whether they are in conformity with the contract. Sec. 1684i — 47, Stats. By sec. 1684i — 48, Stats., it is provided:
“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 tlie seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them.”
The court based his ruling that there had been an acceptance on the grounds, first, that the action of defendant was inconsistent with the ownership of the goods by the plaintiffs, and second, that it delayed for an unreasonable time in giving notice of the refusal to accept.
It was undisputed that the defects claimed were of such a nature that they could be easily discovered without very
It is true that what is a reasonable time for acceptance is usually a question for the jury, but the time may be so long that a court can and should say as a matter of law that the acceptance has been made. J. L. Owens Co. v. Whitcomb, 165 Wis. 92, 160 N. W. 161; J. B. Bradford P. Co. v. Baal, 166 Wis. 134, 164 N. W. 822; Fort Wayne P. Co. v. Hurley-Reilly Co. 163 Wis. 179, 157 N. W. 773; Hiltgen v. Biever, 162 Wis. 315, 156 N. W. 132; Kelsey v. J. W. Ringrose N. Co. 152 Wis. 499, 140 N. W. 66; Northfield Nat. Bank v. Arndt, 132 Wis. 383, 112 N. W. 451. In most of the cases which have arisen in this state the sales were of machinery or articles where time might be necessary for making tests. For still stronger reasons the rule declared in such cases should apply in the instant case where the defects were plainly in sight.
The defendant’s counsel made the following offer:
“The defendant offers to prove by the witnesses Mrs. Cole, Miss Bartel, and Mr. Pruess that each of these witnesses is engaged in the business of buying, selling, and dealing in ready-to-wear cloaks, such as are described in the pleadings herein, and are familiar with the customs of the trade in the city of La Crosse; that it is the custom, and was such custom on the 17th day of August, 1920, to purchase such goods in the market in the spring of the year for delivery in the early fall, and that it was also the custom, when such goods were delivered, to unpack them to*398 prevent disfigurement and crushing of the goods, and to hang them on racks and in bins, and that’ the retail trade in such garments did not commence until the latter part of October.”
It will be observed that this was an offer to prove a local custom or trade in the city of La Crosse. There was no offer to prove that the custom was known to the plaintiffs or other dealers outside the city or in distant states. We have statutes which determine the rights and duties of parties in sales of this character, and the terms of the statute should not be lightly set aside. Before evidence of such a custom as may be inconsistent with the statute is received there should at least be compliance with the general rules which govern the admission of testimony to establish the custom or usage. In speaking of an alleged custom it was said in an early case: '
“It is not readily adopted by courts, and the proof of such usage must be clear and explicit, and the usage so well established, uniform, and so notorious that the parties must be presumed to .know it, and to have contracted in reference to it.” Power v. Kane, 5 Wis. 265, 268; Lemke v. Hage, 142 Wis. 178, 181, 125 N. W. 440 ; Brunnell v. Hudson S. M. Co. 86 Wis. 587, 57 N. W. 364; Hinton v. Coleman, 45 Wis. 165.
The offer was also made to- prove by experts that twenty-five days was a reasonable time for the inspection and return of the goods. This was the ultimate question to be determined by the jury or the court, and under the circumstances was not a proper subject for expert testimony. It required no expert knowledge to determine whether twenty-five days was a reasonable time to hold goods without making objection when the defects claimed were obvious and known within twenty-four hours. Hamann v. Milwaukee B. Co. 127 Wis. 550, 565, 106 N. W. 1081; Olwell v. Skobis, 126 Wis. 308, 105 N. W. 777; Johnson v. Highland, 124 Wis. 597, 102 N. W. 1085; Lounsbury v. Davis, 124
Defendant’s counsel assign as error the submission to the jury of the question whether, defendant made claim for damages within a reasonable time after it knew or ought to have known of the defects. By the terms of the statute, “if, after acceptance of the goods., the buyer fails to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows, or ought to know, of such breach, the seller shall not be liable therefor.” Sec. 1684f — 49, Stats.
It is urged that by the terms of the statute the buyer has a 'reasonable time after “acceptance” to present his claim for damages, not merely a reasonable time after “delivery.” This is undoubtedly true; but the trial judge held that the reasonable time within which defendant was required to make claim for damages commenced to run when it knew or ought to have known of- the defects complained of. The proof evidently satisfied the jury and the trial court that the defects were known to defendant within a very short time after August 17th, and that to wait until September 11th was an unreasonable delay. This court had under consideration the statute now relied on by appellant in Chess & Wymond Co. v. La Crosse B. Co. 173 Wis. 382, 181 N. W. 313, and it tends to support the view taken by the trial court, with which we agree.
By the Court. — Judgment affirmed.