What constitutes a reasonable time13 and whether the acts amount to an acceptance are questions of fact for the jury under all the circumstances of the case.14 The contract may provide for the vendee's decision after making stipulated tests.15 In such cases, the vendee must make the test in and equivalent to an acceptance. Treadwell v. Reynolds, 39 Conn. 31, 34. Where goods delivered do not comply with the terms of the contract, failure to reject them seasonably may be regarded as a waiver of the noncompliance. Graham v. Hatch Storage Battery Co., 186 Mass. 226. A had a standing offer from B for eel skins of over a certain length. Held, that A was warranted in sending B skins conforming to the requirements and even if the offer was not such that the contract was made as soon as skins corresponding to its terms were sent, sending them would impose on B. a duty to act about them, and silence on his part, coupled with the retention of the skins for an unreasonable time, might be found by the jury to warrant A in assuming that they were accepted and thus to amount to an acceptance. Hobbs v. Massasoit Whip Co., 158 Mass. 194, 197. Citing Taylor v. Dexter Engine Co., 146 Mass. 613; Bushel v. Wheeler, 15 Q. B. 442; Benjamin on Sales, §§ 162, 164. Vendee's retaining shoes for over a month on an offer to sell for "cash by return mail" or return of the goods implied an acceptance. Wheeler v. Klaholt, 178 Mass. 141. In the sale of fifty bales of merchantable gambia "sound, to be taken; sea damages, if any, to be rejected at time of delivery," the goods were delivered at the vendee's request to an express company to be forwarded to the vendee, who, after inspection, rejected them. Held, that under the special clause, rejection could only be for damages from carriage by sea; that the vendee was entitled to a reasonable time after de livery in which to inspect the goods; that delivery to the express company was delivery to the vendee, but that the carrier was the agent for delivery only and not for acceptance. Solomon v. King, 63 N. J. L. (34 Vroom) 39. "When goods are sent to a buyer in performance of the vendor's contract, the buyer is not precluded from objecting to them, by merely receiving them; for receipt is one thing and acceptance another. But receipt will beccme acceptance if the right of rejection is not exercised within a reasonable time, or if any act be done by the buyer which he would have no right to do unless he were the owner of the goods." Benjamin on Sales, § 703. 13. South Bend Pulley Co. v. Caldwell (Ky. 1899), 55 S. W. 208, 54 S. W. 12; Sorg Co. v. Crouse, 88 Hun, 246. What is a reasonable time for the return of goods is a question of fact depending on the circumstances, and the statement printed on the letter head that "all claims must be made within three days after receipt of goods" was not a part of the contract. Cohen v. Pemberton, 53 Conn. 221, 222. 14. English v. Spokane Com. Co., 48 Fed. 196; Bulkley v. Waterman, 13 Conn. 328. It is a question for the jury whether the circumstances proved, of acting or forbearing to act, do or do not amount to an acceptance. Garfield v. Paris, 96 U. S. 557. Citing Bushnell v. Wheeler, 15 Q. B. 442, 15 A. & E. (N. S.) 445; Parker v. Wallis, 5 El. & Bl. 21; Lillywhite v. Devereux, 15 M. & W. 285; Simmonds v. Humble, 13 C. B. (N. S.) 258, 261. 15. Russell v. Murdock, 79 Iowa, good faith,16 within the specified time," and must give notice of rejection at the time, in the manner and to the persons agreed upon.18 Failure to test or give notice, unless waived, implies acceptance. 19 The seller personally or by his agent20 may waive notice of nonacceptance or rejection, either expressly21 or impliedly.22 The buyer may waive non-conformity with the terms of the contract personally or by his agent.23 Under an entire contract, the 101; McCormick Harv. Co. v. Brower, 88 Iowa, 607; Williams Mfg. Co. v. Standard Brass Co., 173 Mass. 356; Fahey v. Esterley Mach. Co., 3 N. D. 220. 16. Louisiana, etc., Co. v. Bass, etc., Works, 69 Fed. 65, 30 U. S. App. 433; McCormick Harv. Co. v. Russell, 86 Iowa, 556; Bonhan Cotton Compress Co. v. McKellar, 86 Tex. 694. 17. McCormick Harv. Co. V. Brower, 88 Iowa, 607. 18. Moultrie Lum. Co. v. Driver Lum. Co., 122 Ga. 26; Furneaux v. Esterley, 36 Kan. 539; Champion Machine Works v. Mann, 42 Kan. 372; Nichols v. Knowles, 31 Minn. 489; Fahey v. Esterley Machine Co., 3 N. D. 220. 19. Pullman Palace Car Co. v. Met. Street Ry. Co., 157 U. S. 94; Case Thresher Co. v. Vennum, 4 Dak. 92; Byrd v. Printing Press Co., 90 Ga. 542; Moultrie Lum. Co. v. Driver Lum. Co., 122 Ga. 26; Bayliss v. Hennessey, 54 Iowa, 11; Wendall v. Osborne, 63 Iowa, 100; King v. Towsley, 64 Iowa, 75; Upton Mfg. Co. v. Huiske, 69 Iowa, 557; Phelps-Bigelow Co. v. Piercy, 41 Kan. 763; Champion Machine Co. v. Mann, 42 Kan. 372; Central Trust Co. v. Arctic Mfg. Co., 77 Md. 202; Weston v. Card, 96 Mich. 373; Turner v. Muskegon Mach. Co., 97 Mich. 166; Latham v. Bausmann, 39 Minn. 57; Sandwich Mfg. Co. v. Feary, 34 Neb. 411; Dewey v. Erie, Borough, 14 Pa. St. 211; Hickman v. Schimp, 109 Pa. St. 16; Stutz v. Coal Co., 131 Pa. St. 267; Butler v. School District of Leighton, 149 Pa. St. 351; Bonham Cotton Comp. Co. v. McKellar, 86 Tex. 694; Waters' Heater Co. v. Mansfield, 48 Vt. 372, 378; Palmer v. Banfield, 86 Wis. 441. 20. Woodruff v. Noyes, 15 Conn. 335; 2 Mechem on Sales, § 1386. 18. 21. Wartman v. Breed, 117 Mass. 22. Continued test requested by seller. Snody v. Shier, 88 Mich. 304; Osborne v. Baker, 103 Mich. 247; Sandwich Mfg. Co. v. Fearey, 40 Neb. 226, 34 Neb. 411; Osborne v. McQueen, 67 Wis. 392; Bannon v. Aultman, 80 Wis. 307. Notice of defect and attempt to remedy. Ohio Thresher Co. v. Hensel, 9 Ind. App. 328; Dean v. Nichols, 95 Iowa, 89; Briggs v. Rumley Co., 96 Iowa, 202; Peterson v. Wood Co., 97 Iowa, 148; Champion Mach. Co. v. Mann, 42 Kan. 372; Massachusetts Loan Co. v. Welsh, 47 Minn. 183. Refusal to take back goods or remedy defect. Champion Mach. Co. v. Mann, 42 Kan. 372; Wood M. & R. Mach. Co. v. Calvert, 89 Wis. 640. 23. Forster Co. v. McKinnon Mfg. Co., 130 Wis. 281. Waiver of non-compliance with terms of order may be inferred from the acceptance of the goods by a general agent of the purchaser, but not from the acceptance by a common carrier. Woodruff v. Noyes, 15 Conn. 335, 339. "He had a right to report them, because the terms of his order had not been complied with, but he might waive the exercise of that right, and if he did, he would be liable for the buyer must accept or reject in toto,24 he cannot accept part and reject part;25 but it is otherwise in severable contracts.26 Where the goods are in two stores, whether accepting the goods in one store under an entire contract is accepting the whole is a question of fact for the jury." In an action for the price, the burden of proving acceptance is upon the vendor. 28 Section 49. Acceptance Does Not Bar Action for Damages.In the absence of express or implied agreement of the parties, acceptance of the goods by the buyer shall not discharge the seller from liability in damages or other legal remedy for breach of any promise or warranty in the contract to sell or in the sale; but if, after acceptance of the goods, the buyer fails to give notice to the seller of the breach of any promise or warranty within a goods actually received in the same manner as if his whole order had been supplied. From the defend ant's silence, the plaintiffs had 2 right to infer that he was satisfied with the shipment, that he waived all objections to it, and received the goods as if the order had been filled in exact accordance with its terms, and to conduct accordingly. If it had been proved by direct evidence that the goods actually came to the defendant's use, that would have been conclusive proof of a waiver of all objections. Corning v. Colt, 5 Wend. (N. Y.) 253, 256. The defendant's silence upon the receipt of the plaintiff's letter and bill of parcels was evidence of another kind, indeed, but equally satisfactory, if not absolutely conclusive. Willis v. Jernegan, 2 Atk. 252; Murray v. Toland, 3 Johns. Ch. 569, 575." Downs V. Marsh, 29 Conn. 409, 413, 414. 24. Rubin v. Sturtevant, 80 Fed. 930; Clark v. Baker, 46 Mass. (5 Met.) 452, 52 Mass. (11 Met.) 186; Morse v. Brackett, 98 Mass. 205; Mansfield v. Trigg, 113 Mass. 350; Cahen v. Platt, 69 N. Y. 348; Pierson v. Crooks, 115 N. Y. 539. 25. Guernsey v. West Coast L. Co., 87 Cal. 249; Reed v. Randall, 29 N. Y. 358; McCormick v. Sarson, 45 N. Y. 265; Gaylord Mfg. Co. v. Allen, 53 N. Y. 515; Bailey v. W. Vermont R. R. Co., 18 Barb. (N. Y.) 112; Snook v. Fries, 19 Barb. (N. Y.) 313; Williams v. Sherman, 48 Barb. (N. Y.) 402; Flanagan v. Demarest, 3 Rob. (N. Y.) 173. The buyer cannot accept a portion of goods sold under an entire contract and return the remainder. Morse v. Brackett, 98 Mass. 205. 26. Potsdamer v. Kruse, 57 Minn. 193; Holmes v. Gregg, 66 N. H. 621; Pierson v. Crooks, 115 N. Y. 539. 27. It is a question of fact for the jury whether the vendee's taking possession of the goods in one store is taking possession of the whole where the goods bought under an entire contract are part in one store and part in another. Wilson v. Russell, 136 Mass. 211. 28. Merriman V. Chapman, 32 Conn. 146, 149. For sufficient acceptance under the statute of frauds, see sec. 4. Page v. Morgan (1885), 15 Q. B. D. 228 C. A. reasonable time after the buyer knows, or ought to know, of such breach, the seller shall not be liable therefor. EFFECT OF ACCEPTANCE.-The tender of delivery by the vendor of goods of the kind, quality, quantity and at the time bargained for, is a condition precedent to the buyer's obligation to accept, for a deficient performance of which he may refuse to accept and may rescind the contract, or, affirming it, recover damages for nondelivery.1 If, instead of rejecting the tender of delivery, the buyer accepts it, he waives the deficient performance of the conditions precedent, but does not waive the recovery of damages for such deficiency as to time, or quantity3 in the absence of his own default, or a contrary intention of the parties.5 QUALITY.-Caveat Emptor.-As to quality, if there was no warranty an acceptance of the goods is a conclusive acknowledgment of the seller's performance, and a waiver of deficient quality in the absence of fraud. 1. See sec. 11. Jones v. Bloomgarden, 143 Mich. 326; Smith v. Pickands, 148 Mich. 558; Sutton V. Clarke, 42 Ore. 525. An offer to return the goods and a tender of the same in an action for the price operates as a rescission. Lyon v. Lindblad, 145 Mich. 588. "Mere acceptance of a purchased article after the agreed time of delivery does not constitute a waiver of damages for the delay, unless such acceptance is accompanied by other circumstances which manifest an intention on the part of the purchaser to waive such damages. The intention of the parties controls." Johnson v. Bottle Glass Co., 74 Kan. 762, 769. Citing Ramsey v. Tully, 12 Ill. App. 463; Halstead Lumber Co. v. Sutton, 46 Kan. 192; Van Winkle Co. v. Wilkins, 81 Ga. 93; Ruff v. Rinaldo, 55 N. Y. 664; McMaster v. State, 108 N. Y. 542, 553; Hansen v. Kirtley, 11 Ia. 565; Industrial Works v. Mitchell, 114 Mich. 29. See, also, Chattanooga Car & Foundry Co. v. LeFebre, 113 La. 487. 2. Flannery V. Rohrmayer, 46 Conn. 558; Poland Paper Co. v. Foote & Davies Co., 118 Ga. 458; Haven v. Wakefield, 39 Ill. 509; Harber v. Moffat Cycle Co., 151 Ill. 84; Ramsey V. Tully, 12 Ill. App. 471; Hansen v. Kirtley, 11 Iowa, 565; Halstead Lumber Co. v. Sutton, 46 Kan. 192; Industrial Works V. Mitchell, 114 Mich. 29; Ruff v. Rinaldo, 55 N. Y. 664; Strain v. Mfg. Co., 80 Tex. 622; Dignan v. Spurr, 3 Wash. 309. Contra, unless claim to damages expressly reserved. Baldwin v. Farnsworth, 10 Me. 414; Minn. Threshing Machine Co. v. Hutchins, 65 Minn. 89; Bock v. Healey, 8 Daly (N. Y.), 156; Baker v. Henderson, 24 Wis. 509. 3. 2 Mechem on Sales, § 1390; Dryden v. Barnes, 101 Md. 346. 4. Harber v. Moffat Cycle Co., 151 Ill. 84. 5. Avery v. Willson, 81 N. Y. 341; Kipp v. Meyer, 5 Hun (N. Y.), 111. 6. Smith v. Rail Mill Co., 50 Ark. 31; Guernsey v. Lumber Co., 87 Cal. 249; Maynard v. Render, 95 Ga. 652; Underwood v. Caldwell, 102 Ga. 16; Cook v. Finch, 117 Ga. 541; Portland Cement Co. v. Turpin, 126 Ga. 677; WARRANTY.-Express warranty survives acceptance. It is a part of the contract to sell and a condition precedent to the buyer's obligation to accept that the seller shall deliver goods conforming to the terms of the contract. When the goods are tendered, the buyer may be unwilling to trust his own judgment as to consequences of visible defects, or as to the presence of latent defects and may protect himself by exacting an express collateral undertaking from the seller to insure him against injury from these Titley v. Enterprise Stone Co., 127 Ill. 457; Am. Theatre Co. v. SiegelCooper Co., 221 Ill. 145; Barker v. Turnbull, 51 Ill. App. 226; Price v. Huddleston, 167 Ind. 536; Schopp v. Taft, 106 Iowa, 612; Talbot Pav. Co. v. Gorman, 103 Mich. 403; Williams v. Robb, 104 Mich. 242; Henderson Lumber Co. v. Stillwell, 130 Mich. 124; Brown v. Harris, 139 Mich. 372; Thompson v. Libby, 34 Minn. 374, 35 Minn. 443; Roman V. Bressler, 32 Neb. 240; Reed v. Randall, 29 N. Y. 358; Gaylord Mfg. Co. v. Allen, 53 N. Y. 515; Gurney v. Railroad Co., 58 N. Y. 358; Norton v. Dreyfuss, 106 N. Y. 90; Coplay Iron Works v. Pope, 108 N. Y. 232; Brown v. Foster, 108 N. Y. 387; Studer v. Bleistein, 115 N. Y. 316, 5 L. R. A. 702; Pierson v. Crooks, 115 N. Y. 539; Bowman Lum. Co. v. Anderson, 70 Ohio St. 16; Werner Saw Mill Co. v. Ferree, 201 Pa. St. 405; Park v. O'Conner, 70 Tex. 377; National Bank v. Arndt, 132 Wis. 382. Where a buyer relies on his own judgment, accepts and uses an article with the means of knowing and actually knowing its quality at the time of delivery, the seller is not liable for any loss because the article delivered was of an inferior quality to that stipulated for. Day v. Mapes-Reeve Construction Co., 174 Mass. 412. An unqualified acceptance of the goods after an examination or opportunity therefor, estops the vendee from afterward claiming that they are not of the agreed quality, if there was no fraud or warranty. McCormick v. Sarson, 45 N. Y. 265; Gay lord Mfg. Co. v. Allen, 53 N. Y. 515; Carley v. Wilkins, 6 Barb. (N. Y.) 557; Deifendorff v. Gage, 7 Barb. (N. Y.) 18; Ely v. O'Leary, 2 E. D. Sm. (N. Y.) 355; Francois v. Ochs, 2 E. D. Sm. (N. Y.) 417; Van Riper v. Ackerman, 3 E. D. Sm. (N. Y.) 58; Pierson v. Crooks, 115 N. Y. 539. "If the goods had been received, and were of any value, in the absence of a return or tender the plaintiff would be entitled to recover the amount of that value, even if the goods were not of the value and quality represented. Dill v. O'Ferrell, 45 Ind. 268; La Fayette Agr. Works v. Phillips, 47 Ind. 259; Cates v. Bales, 78 Ind. 285; Arnold v. Wilt, 86 Ind. 367; Fleetwood v. Dorsey Mach. Co., 95 Ind. 491; Smith v. Borden, 160 Ind. 223, 230." Price v. Huddleston, 167 Ind. 536, 541. 7. Rubin v. Sturtevant, 80 Fed. 930, 51 U. S. App. 286; Eagan Co. v. Johnson, 82 Ala. 233; Riddle v. Webb, 110 Ala. 599; Hodge v. Tufts, 115 Ala. 366; Babcock v. Trice, 18 Ill. 420; Underwood v. Wolf, 131 Ill. 425; Iroquois F. Co. v. Wilkin Mfg. Co., 181 Ill. 582; Jackson v. Mott, 76 Iowa, 263; Laporte Implement Co. v. Brock, 99 Iowa, 485; Morse v. Moore, 83 Me. 473, 13 L. R. A. 224; Central Tr. Co. v. Arctic Ice Mach. Co., 77 Md. 202; Day v. Poole, 52 N. Y. 416; Parks v. Morris Ax Co., 54 N. Y. 586; Dounce v. Dow, 57 N. Y. 16; Gurney v. Atl. & G. W. R. Co., 58 N. Y. 358; Brigg v. Hilton, 99 N. Y. 517; Kent v. Friedman, 101 N. Y. 616; Coplay Iron Co. v. Pope, 108 N. Y. 232; Studer v. Bleisten, 115 N. Y. |