86 Wis. 441 | Wis. | 1893
If the sale was absolute, as claimed by plaintiff, and there was a breach of an express or implied warranty of the machine, and if defendant accepted the machine after testing it and discovering its defects; or if the sale was upon condition that if dissatisfied with the machine the defendant might return it, and if defendant, after testing it, fully determined that it was unsatisfactory to him and he would return it, and afterwards accepted it,— in either case the right to return it was lost. The court instructed the jury that, if defendant ascertained on Thursday or Friday that the machine did not do good work, in the one case; or, in the other case, that he then determined he would return it as unsatisfactory,— if he used it on Saturday, not to test it further, but merely to complete the cutting of his grain and without any expectation that plaintiff or his agent would come there and make the machine satisfactory to him, such use was an acceptance of the machine as a compliance with the contract, and was fatal to his right to return it. We think the court stated the law correctly, and that the testimony justified the submission to the jury of the question-of acceptance.
It should be stated that when plaintiff took the machine to defendant he had with him an expert, who assisted in starting it. There is testimony to the effect that, without plaintiff’s knowledge, such expert told defendant’s son he would return on Friday and see how the machine worked; but he made no promise to go there on Saturday. Plaintiff informed defendant that he would remain at Cuba City (his home being in Galena) until Saturday, where he could
By the Court.— The judgment of the circuit court is affirmed.