large number of decisions in the United States," and is the unquestioned law of England.80 § 707. Effect of retention without complaint. While merely taking title to the goods does not warrant 79 English v. Spokane Commission Co., 48 Fed. 196; Meyer v. Everett Pulp & Paper Co., 193 Fed. 857, 113 C. C. A. 643; Hodge v. Tufts, 115 Ala. 366, 22 So. 422; Frith v. Hollan, 133 Ala. 583, 32 So. 494, 91 Am. St. Rep. 54; Baer v. Mobile Cooperage Co., 159 Ala. 491, 49 So. 92; North Alaska Salmon Co. v. Hobbs, 159 Cal. 380, 113 Pac. 870, 120 Pac. 27, 35 L. R. A. (N. S.) 501; Grisinger v. Hubbard, 21 Ida. 469, 122 Pac. 853; Underwood v. Wolf, 131 Ill. 425, 23 N. E. 598, 19 Am. St. Rep. 40; Morris v. Wilbaux, 159 Ill. 627, 43 N. E. 837; Iroquois Furnace Co. v. Wilkin Mfg. Co., 181 Ill. 582, 54 N. E. 987 (but see Eureka Steel Co. v. Morden Frog Works, 23 Ill. App. 591; Barker v. Turnbull, 51 Ill. App. 226, 229; McLeod v. Andrews, 116 Ill. App. 646, where the Illinois Court of Appeals, misinterpreting Titley v. Enterprise Stone Co., 127 Ill. 457, 20 N. E. 71, fails to follow the doctrine of the Illinois Supreme Court); Hege v. Newson, 96 Ind. 426, 431; Graff v. Osborne, 56 Kans. 162, 42 Pac. 704; Payne v. Lumber Co., 110 La. 750, 34 So. 763; Campion v. Marston, 99 Me. 410, 59 Atl. 548; Taylor v. Cole, 111 Mass. 363; Gilmore v. Williams, 162 Mass. 351, 38 N. E. 976; Borden v. Fine, 212 Mass. 425, 98 N. E. 1073; St. Louis Brewing Assn. v. McEnroe, 80 Mo. App. 429; Edwards v. Noel, 88 Mo. App. 434; Huber Mfg. Co. v. Hunter, 99 Mo. App. 46, 72 S. W. 484; Monarch Metal Weather Strip Co. v. Hanick, 172 Mo. App. 680, 155 S. W. 858; Simrall v. American Multigraph Sales Co., 172 Mo. App. 384, 158 S. W. 437; Spiers v. Halsted, Haines & Co., 74 N. C. 620; Lewis v. Rountree, 78 N. C. 323; Kester v. Miller, 119 N. C. 475, 26 S. E. 115 (but see Parker v. Fenwick, 138 N. C. 209, 50 S. E. 627); Northwestern Cordage Co. v. Rice, 5 N. Dak. 432, 67 N. W. 298; Morse v. Union Stock Yards, 21 Oreg. 289, 28 Pac. 2, 14 L. R. A. 157; Best v. Flint, 58 Vt. 543, 56 Am. Rep. 570; Jacot v. Grossmann Seed Co., 115 Va. 90, 78 S. E. 646; Tacoma Coal Co. v. Bradley, 2 Wash. 600, 27 Pac. 454, 26 Am. St. Rep. 890; Konnerup v. Allen, 56 Wash. 292, 105 Pac. 639; Eichbaum v. Caldwell Bros. Co., 58 Wash. 163, 108 Pac. 434; Nicoll v. Modern Steel Structural Co., 143 Wis. 545, 128 N. W. 72. See also Smith v. Mayer, 3 Colo. 207; Shupe v. Collender, 56 Conn. 489, 15 Atl. 405, 1 L. R. A. 339; Central Trust Co. v. Arctic Mfg. Co., 77 Md. 202, 26 Atl. 493; Dayton v. Hooglund, 39 Ohio St. 671. 80 In Benjamin, Sale (5th ed.), 1006, it is said: "The second proposition that the buyer may, after receiving and accepting the goods, bring his action (or set up his counterclaim, per Brett, L. J., in Thomson v. S. E. Ry. Co., [1882] 9 Q. B. D. 320, at 330) for damages in case the quality is inferior to that warranted by the seller, needs no authority. It is (so enacted by the Code, § 11 [1] [a], and § 53 [1]), taken for granted in all the cases, there being nothing to create an exception from the general rule that an action for damages lies in every case of a breach of promise made by one man to another for a good and valuable consideration. See the opinions of the judges in Poulton v. Lattimore, [1829] 9 B. & C. 259." the conclusion that the buyer has agreed to take the goods in full satisfaction of all the seller's obligation, the retention and use of the goods for a considerable period without any complaint warrants a strong inference either that the goods are what the contract called for, or that the buyer agreed to accept them instead of such goods.81 Accordingly in many of the decisions to which reference has been made, stress is rightly 82 laid on the importance of accepting under protest or giving prompt notice of defects if the buyer desires to assert a claim for damages.83 But in other cases this seems less insisted upon. The Supreme Judicial Court of Maine has well stated the doctrine which apart from statute seems sound on principle. 48 "The fact of acceptance, however, as a matter of evidence, Jacot v. Grossman Seed Co., 115 Va. 90, 78 S. E. 646. Evidence of such uncomplaining delay may be submitted to the jury on the question of the buyer's good faith in setting up a breach of warranty for the first time when the price is finally sued for. Fuller v. Harris, 48 Wash. 519, 93 Pac. 1080. In Puffer Mfg. Co. v. Krum, 210 Mass. 211, 96 N. E. 139, the court said: "We do not mean to intimate that the auditor was not justified in his finding, that the giving of the lease and check, and payment of the notes after the defendant had full knowledge of the imperfections in the fountain was in fact an acceptance of the fountain as a fulfillment of the contract of purchase." See also Maltbie v. Gadd, 101 Wash. 483, 172 Pac. 557. Hodge v. Tufts, 115 Ala. 366, 22 So. 422; Babcock v. Trice, 18 Ill. 420, 68 Am. Dec. 560; Titley v. Enterprise Stone Co., 127 III. 457, 20 N. E. 71; Morse v. Moore, 83 Me. 473, 22 Atl. 362, 13 L. R. A. 224; Parker v. Fenwick, 138 N. C. 209, 50 S. E. 627; Minnesota Thresher Mfg. Co. v. Hanson, 3 N. Dak. 81, 54 N. W. 311; White ↑. Oliver, 32 Okl. 479, 122 Pac. 156; Morse v. Union Stock Yards, 21 Oreg. 289, 28 Pac. 2, 14 L. R. A. 157; Hurley-Mason Co. v. Stebbins, 79 Wash. 366, 140 Pac. 381, L. R. A. 1915 B. 1131; Nicoll v. Modern Steel Structural Co., 143 Wis. 545, 128 N. W. 72. But the notice need not point out the particular defects. Elliott v. Howison, 146 Ala. 568, 40 So. 1018. 83 In Taylor v. Cole, 111 Mass. 363, the court held that where one for whom a kettle had been made examined it and knew that it leaked but ordered it to be delivered without objection, and notwithstanding the fact that it continued to leak gave his promissory note for the price without objection, there was not conclusive evidence of waiver of all claims to damages. A finding of the jury for the buyer was, therefore, not set aside. See also Richardson v. Grandy, 49 Vt. 22; Tacoma Coal Co. v. Bradley, 2 Wash. 600, 27 Pac. 454, 26 Am. St. Rep. 890; Larson v. Aultman & Taylor Co., 86 Wis. 281, 56 N. W. 915, 39 Am. St. Rep. 893. 84 Morse v. Moore, 83 Me. 473, 481, 22 Atl. 362, 13 L. R. A. 224, 23 Am. St. Rep. 783. This extract is quoted with approval in English v. Spokane Commission Co., 48 Fed. 196. may have great weight on the question of satisfactory or sufficient performance. In the first place, it raises considerable presumption that the article delivered actually corresponded with the agreement. In the next place, it is some evidence of a waiver of any defect of quality, even if the article did not so correspond-evidence of more or less force according to the circumstances of the case. If the goods be accepted without objection at the time or within a reasonable time afterward, the evidence of waiver, unless explained, might be considered conclusive. But if, on the other hand, objection is made at the time, and the vendor notified of the defects, and the defects are material, the inference of waiver would be altogether repelled. But acceptance accompanied by silence is not necessarily a waiver. The laws permit explanation and seeks to know the circumstances which induced acceptance. It might be that the buyer was not competent to act upon his own judgment, or had no opportunity to do so, or declined to do so as a matter of expediency, placing his dependence mainly, as he has a right to do, upon the warranty of the seller. Upon this question the facts are generally for the jury under the direction of the court." The Uniform Sales Act in section 48 first defines what amounts to acceptance: "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." The statute then states the effect of acceptance.84 § 708. In some states acceptance of title waives right of damages for inferior quality. In some States the views which have been expressed in the preceding sections are not supported by the decisions. Especially in New York prior to the enactment in that State of the 84 See infra, § 714. Uniform Sales Act has it been held that taking title to the goods indisputably proves an assent to accept the goods in full satisfaction of the seller's obligations as to the quality of the goods; 85 and the doctrine of the New York courts has been followed in other jurisdictions.8 86 85 Reed v. Randall, 29 N. Y. 358, 86 Am. Dec. 305; Gaylord Mfg. Co. v. Allen, 53 N. Y. 515; Brigg v. Hilton, 99 N. Y. 517, 3 N. E. 51, 52 Am. Rep. 63; Studer v. Bleistein, 115 N. Y. 316, 22 N. E. 243, 5 L. R. A. 702; Pierson v. Crooks, 115 N. Y. 539, 22 N. E. 349, 12 Am. St. Rep. 831; Gentilli v. Starace, 133 N. Y. 140, 30 N. E. 660; Waeber v. Talbot, 167 N. Y. 48, 60 N. E. 288, 82 Am. St. Rep. 712; Staiger v. Soht, 191 N. Y. 527, 84 N. E. 1120, affg. 116 N. Y. App. Div. 874, 102 N. Y. S. 342; Ferguson v. Netter, 204 N. Y. 505, 98 N. E. 16; Lifshitz v. McConnell, 80 N. Y. App. Div. 289, 80 N. Y. S. 253; Kelly Asphalt Block Co. v. Barber Asphalt Paving Co., 136 N. Y. App. Div. 22, 120 N. Y. S. 163; Motley v. Elmenhorst, 142 N. Y. App. Div. 830, 127 N. Y. S. 625; Howes v. Corti Building Co., 76 N. Y. Misc. 507, 135 N. Y. S. 562; Atlantic Coast Lumber Corp'n v. McCaldin Bros. Co., 76 N. Y. Misc. 528, 135 N. Y. S. 627; R. Young Bros. Feed Co. v. Seymour, 151 N. Y. App. Div. 549, 136 N. Y. S. 80; Lowenberg Co. v. Block, 140 N. Y. S. 375. The law of New York is changed by the Sales Act. See infra, § 714. Carleton v. Jenks, 80 Fed. 937, 47 U. S. App. 734, 26 C. C. A. 265; Oakland Mill Co. v. Wolf Co., 118 Fed. 239, 55 C. C. A. 93; Corey's Wholesale Fruit Co. v. Fuller, 62 Fla. 146, 56 So. 800; Henderson Elev. Co. v. North Georgia Mfg. Co., 126 Ga. 279, 55 S. E. 50; Springer v. Indianapolis Brewing Co., 126 Ga. 321, 55 S. E. 53; Miller v. Moore, 83 Ga. 684, 10 S. E. 360, 6 L. R. A. 374, 20 Am. St. Rep. 329; Maynard v. Render, 95 Ga. 652, 23 S. E. 194; Underwood v. Caldwell, 102 Ga. 16, 29 E. S. 164; Gandy v. Seymour Slack Stave Co. (Ind. App.), 90 N. E. 16; Allison v. Vaughan, 40 Iowa, 421; Hirshhorn v. Stewart, 49 Iowa, 418; Mackey v. Swartz, 60 Iowa, 710, 15 N. W. 576; Schopp v. Taft, 106 Iowa, 612, 76 N. W. 843; Keniston v. Todd, 139 Iowa, 287, 117 N. W. 674; Jones v. McEwan, 91 Ky. 373, 16 S. W. 81, 12 L. R. A. 399; Forsythe v. Russell Co., 148 Ky. 490, 146 S. W. 1103; Albin Co. v. Kentucky Table Co., 23 Ky. L. Rep. 2261, 67 S. W. 13; Talbot Paving Co. v. Gorman, 103 Mich. 403, 61 N. W. 655, 27 L. R. A. 96; Williams v. Robb, 104 Mich. 242, 62 N. W. 352; Henderson Co. v. Stilwell, 130 Mich. 124, 80 N. W. 718; Brown v. Harris, 139 Mich. 372, 102 N. W. 960; Buick Motor Co. v. Reid Mfg. Co., 150 Mich. 118, 113 N. W. 591; Columbus, etc., Iron Co. v. See, 169 Mich. 661, 135 N. W. 920; Gill v. Nat. Gaslight Co., 172 Mich. 295, 137 N. W. 690; Lee v. Bangs, 43 Minn. 23; s. c., sub nom. Sole Leather Over Mfg. Co. v. Bangs, 44 N. W. 671; Rosenfield v. Swenson, 45 Minn. 190, 47 N. W. 718; Stilwell Co. v. Biloxi Co., 78 Miss. 779, 29 So. 513; Roman v. Bressler, 32 Neb. 240, 49 N. W. 368; Havens v. Grand Island Light, etc., Co., 41 Neb. 153, 59 N. W. 681; Hazen v. Wilhelmie, 68 Neb. 79, 93 N. W. 920; Patrick v. Norfolk Lumber Co., 81 Neb. 267, 115 N. W. 780; Brooke v. Laurens Milling Co., 78 S. Car. 200, 58 S. E. 806; Parks v. O'Connor, 70 Tex. 377, 390, 8 S. W. 104; Easton v. Dozier (Tex. Civ. App.), 148 S. W. 603; Hurley-Mason § 709. Difficult position of the buyer under this rule. In jurisdictions where the law, like that of New York prior to the enactment of the Uniform Sales Act, holds that acceptance of the goods (barring the excepted cases hereafter considered) precludes subsequent remedy for inferiority, and also denies the buyer of goods under an executed sale the right of rescission for breach of warranty,87 a buyer to whom goods are tendered is in a difficult position. If the property in the goods has already passed the buyer will be committing a breach of his obligation if he fails to take the goods even though they do not conform to the warranty. He must take the goods and seek redress in a cross-action or by a counterclaim, when sued for the price. On the other hand, if the property has not passed the buyer must not take the goods if they do not conform to the contract, for if he does so he will thereby extinguish all claims on account of such inferiority. It is frequently a very difficult question to determine whether the property has passed in a given case a question of doubt even for lawyers and courts. To require a business man offhand to determine whether a contract is executory or whether the property in the goods has already passed, and to impose a severe penalty upon him if he guesses wrong, is certainly an unfortunate state of the law, which should not be tolerated if, as in the matter under consideration it is not necessary.& Co. v. Stebbins, etc., Co., 79 Wash. 366, 140 Pac. 381; Olson v. Mayer, 56 Wis. 551, 14 N. W. 640; Northern Supply Co. v. Wangard, 117 Wis. 624, 94 N. W. 785, 98 Am. St. Rep. 963; Northfield Nat. Bank v. Arndt, 132 Wis. 383, 112 N. W. 451. See also Smith v. New Albany Mill Co., 50 Ark. 31, 6 S. W. 225. Of the jurisdictions where the cases in this note were decided, Iowa, Michigan, Minnesota and Wisconsin have subsequently enacted the Uniform Sales Act, the effect of which is stated infra, § 714. 87 As to this, see infra, §§ 1461, 1462. 88 The New York court itself seemed even prior to the enactment of the Uniform Sales Act, not much disposed to defend the rules which had become established in that State upon the matter. In Heath Dry Gas Co. v. Hurd, 124 N. Y. App. Div. 68, 108 N. Y. S. 410, after quoting from Reed v. Randall, 29 N. Y. 358, 86 Am. Dec. 305, a passage to the effect that a warranty, though express, if no other than the law would imply had there been no words of express contract, would not survive acceptance, the court said: "Whatever may be said for or against the principle thus enunciated as formulating one amongst other somewhat refined rules governing the subject of warranties, it seems to have been recognized and to have |