Vanderbeek v. Francis

53 A. 1015 | Conn. | 1903

Several questions are presented by the appeal and have been argued. A few simple considerations suffice to justify the action of the trial court and dispose of the case. The plaintiff may, under his complaint, recover an agreed price. Rules of Court, p. 42, § 131. The original contract of sale fixed an agreed price. The sale as finally consummated confirmed that price. The original contract of sale was a conditional one and did not accomplish a sale upon delivery. No title thereby passed. The defendant became only a bailee with an option to become owner. Hunt v. Wyman, 100 Mass. 198. The contract gave the defendant thirty days' trial of the engine and the right of nonacceptance within that time. This time limitation was by mutual consent of the parties extended, during the many months of experiment and alteration which ensued, and the agreement remained a tentative and open one. The plaintiff by his conduct impliedly, as he afterwards did expressly, waived any claim he might have had to a completed sale for the want of a notice of rejection within thirty days, and the defendant his right to reject the engine for unsatisfactory performance or other cause, as originally installed. Both parties were satisfied to postpone the final decision which was to determine whether the engine was to become the defendant's, or remain the plaintiff's property. The end of this period of experiment and trial ended in December, 1897, when the plaintiff put the defendant to his election to accept or reject. The defendant's decision then made and announced in his reply, that he wanted the engine and would pay for it as soon as he had the money, closed the transaction, consummated a sale, and fixed the defendant's liability to pay the originally-agreed price. Whatever right the defendant theretofore may have had to refuse to accept the engine, or to claim a reduction in the amount to be paid by reason of either his dissatisfaction with the machine, its deficiencies, worthlessness, failure to perform, any breach of warranty or other cause, he then waived by his express and unconditional acceptance and agreement to pay for it. This agreement to pay must have been one to pay the originally-specified price, which was the only amount ever suggested. This agreement was not without consideration. The title to the engine then acquired furnished that. Thus, and by his subsequent consistent conduct, the defendant bound himself as the trial court adjudged.

There is no error.

In this opinion the other judges concurred.