Lumbermen's Supply Co. v. Poplarville Sawmill Co.

78 So. 157 | Miss. | 1918

HoldeN, J.r.

delivered the opinion of the court.

The appellee purchased and received from appellant an endless rubber belt, for use in. appellee’s sawmill. There was an implied warranty on the part of appellant that the belt was of merchantable quality and suitable for the purpose for which it was to be used. After using the belt for fifteen days, the appellee discovered that it was unsatisfactory, in that “it was made endless, and where they lapped in making the lap on an endless belt, the lap tore loose; it was dangerous to work it after the first fifteen days.” When appellee discovered this condition of the belt he did not discontinue its use, but, instead of taking it off and returning it to appellant or offering to do so, and thereby rejecting it and rescinding the contract of purchase, he continued to use ■it • for several weeks, at least, and very probably for several months, thereafter, according to appellee’s testimony and its undenied letters written to appellant, as appear in this record. In fact, the record shows no return of the belt, nor any unconditional offer to return it to appellant at any time. The lower court submitted the case to the jury on the question of no liability on account of failure of warranty in suitableness and material of the belt, and there was a verdict for defendant.

The continued use of the belt by appellee after its unsuitable and unsatisfactory condition was discovered, in the absence of notice of rejection and return or offer of return to appellant, constituted an acceptance on the part of appellee. It does not appear from this record that there was any express or implied warranty by appellant that the belt would give service for any specified length of time, nor was there warranty of more than fitness and merchantable quality. If there was a failure of warranty in these respects, appellee should have rejected and returned, or offered to return, the belt within a reasonable time after he discovered such condition; otherwise the implied guaranty was terminated by the acceptance. This he failed to do, and he cannot now repudiate the contract, after having had valuable and continued use of the belt with knowledge of its objectionable condition. Ware v. Houghton, 41 Miss. 370, 93 Am. Dec. 258; Carver Gin Co. v. Gaddy, 62 Miss. 201; Stillwell Co. v. Biloxi Canning Co., 78 Miss. 779, 29 So. 513; Sikemeier v. Jacob, 92 Miss. 562, 46 So. 169, 6 R. C. L., p. 936, section 319; Williston on Sales, section 611. There was no question of fact to submit to the jury. The testimony of appellee is conclusive against it. The judgment of the lower court is reversed, and judgment entered here for appellant.

Reversed, and judgment here.