169 Wis. 338 | Wis. | 1919
Appellant contends that the verdict is not supported by the evidence. This contention was rejected by the trial court. An examination of the record convinces us that the verdict is supported by ample testimony. No more need be said upon the question.
It is further contended that the retention of the engine by respondent for nearly a year after its delivery amounted to
“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 the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them.”
This is but a legislative embodiment of a rule firmly established by the decisions of this court. J. L. Owens Co. v. Whitcomb, 165 Wis. 92, 160 N. W. 161, and cases there cited. In that case it was held that the use of a machine for a length of time unnecessary for any reasonable test to be made thereof must be considered an acceptance. While in this case the written warranty provided that the tractor might be used for one day for the purpose of testing it, and that retention thereafter should constitute an acceptance, it is clear from all the testimony in the case, as well as the conduct of the parties, that this provision was waived by the vendor, and, in fact, it is not contended that an acceptance resulted by reason of this provision in the warranty. The contention is rather based upon the broad general principle that the tractor was retained by respondent for an unreasonable length of time, in view of all the facts and circumstances of the case. Respondent’s testimony, a résumé of which is set forth in the statement of facts, very strongly indicates that at no time did the tractor work to that degree of efficiency which he had a right to expect. The evidence on behalf of the respondent indicates, too, that the tractor never did a satisfactory day’s work, especially when it was used for plowing, and that it was giving almost continual trouble is fairly deducible from the evidence of appellant himself. The only opportunity for plowing with the tractor was in the fall of 1916, and very soon after the delivery thereof appellant concluded to replace the engine. Obviously this conclusion was prompted by the fact that the engine did not work
The evidence is sufficient to justify the conclusion that the tractor did not work well in harrowing and that it utterly failed to work satisfactorily in plowing. It will thus be seen that, while the respondent retained the engine in his possession for upwards of a year, opportunities for testing the tractor were limited; that no test proved satisfactory; and that during all that time he was urged to retain the tractor and to give it further trial, upon the assurance that it would be made to work. We cannot say as a matter of law that the retention, under the circumstances, amounted to an acceptance. On the other hand, the evidence justifies the finding of the jury that there was no acceptance.
It is unnecessary to discuss in detail further contentions made by appellant. They were all covered by the special verdict of the jury, which-we find is supported by the evidence in the case. It follows that the judgment should be affirmed.
By the Court. — Judgment affirmed.