| Ill. App. Ct. | Nov 1, 1901
delivered the opinion of the court.
That the defendant complained of the quality of the wrappers by it received, and notified the plaintiff that they were unsatisfactory, and while keeping and paying for these, that no more like them would be accepted, is clear.
The defendant-did this as soon as it could reasonably have ascertained the fact. Such conduct did not constitute such an acceptance of part as bound it to accept the remainder of the order. The contract was a severable one, the agreement being that the goods were to be shipped in “ 50,000 lots, as called for during 1896; ” the rule, therefore, as to the acceptance of an unseverable portion does not apply to this case.
Mor was the vendee bound to return the remaining 300,000 afterward shipped “ F. O. B.” to its order. It had a right, as it did, to refuse to take from the railroad the residue, and was not bound to obligate itself for freight charges by shipping the wrappers afterward forwarded.
We see no sufficient reason for dissent from the conclusion of the court below that the goods received by the vendee were not such as it had contracted for, nor do we find any error in the holding of the court upon the questions of law submitted, that warrants a reversal of its judgment.
The rule announced in Keeler v. Clifford, 62 Ill. App. 64" date_filed="1896-01-22" court="Ill. App. Ct." case_name="Keeler v. Clifford">62 Ill. App. 64, 165 Ill. 544" date_filed="1897-01-19" court="Ill." case_name="Keeler v. Clifford">165 Ill. 544, and Hubbard v. George, 49 Ill. 275" date_filed="1868-09-15" court="Ill." case_name="Hubbard v. George">49 Ill. 275, as to severable contracts, is applicable here.
We do not regard Harzfeld v. Converse, 105 Ill. 534" date_filed="1883-01-31" court="Ill." case_name="Harzfeld v. Converse">105 Ill. 534, or Wolf v. Dietsch, 75 Ill. 205" date_filed="1874-09-15" court="Ill." case_name="Wolf v. Dietzsch">75 Ill. 205, as at variance with the foregoing.,
It is contended that the goods were sold by sample and that there was no warranty other than that they should be like the sample.
If this were so, still the evidence was such that the court might have found that the wrappers did not correspond with the sample.
The judgment of the Circuit Court is affirmed.