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of goods with latent defects does not bar redress, it has been held that, if the price is paid in advance or without opportunity to inspect the goods, the subsequent acceptance of title does not bar a claim for damages. Likewise if complaint is made when the goods are delivered and the seller promises to rectify the defect, acceptance of the goods does not excuse the seller. Complaint may certainly show the buyer's lack of assent to take the goods in full satisfaction, but if the seller offers them only on the condition that they shall be so taken, the buyer's words of dissent would seem immaterial if he actually took the goods. The existence of latent defects does not so much tend to show any lack of assent to an accord and satisfaction, as to show that assent if given, was given under a mistake of fact.

§ 714. Provisions of the Uniform Sales Act.

It is provided in Section 49 of the Uniform Sales Act: 10 "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 the sale. But if, after acceptance of the goods, the buyer fail to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows, or ought to know of such breach, the seller shall not be liable therefor." 11

Cotton Oil Co. v. Whitesboro Cotton Oil Co. (Tex. Civ. App.), 146 S. W. 225; Cocke v. Big Muddy Coal & Iron Co. (Tex. Civ. App.), 155 S. W. 1019. Cf. Easton v. Dozier (Tex. Civ. App.), 148 S. W. 603.

7 Munford v. Kevil, 109 Ky. 246, 58 S. W. 703; Holloway v. Jacoby, 120 Pa. St. 583, 15 Atl. 487, 6 Am. St. Rep. 737. But if after the price has been paid, and inspection later had and defects learned the buyer keeps the goods it was held that he was remediless in Corey's Wholesale Fruit Co. v. Fuller, 62 Fla. 146, 56 So. 800.

8 Burr v. Atlanta Paper Co., 2 Ga. App. 52, 58 S. E. 373; Wallace v.

Knoxville Mills, 25 Ky. L. Rep. 1445, 78 S. W. 192; Osborne v. Carpenter, 37 Minn. 331, 34 N. W. 163; Fitzpatrick v. Osborne, 50 Minn. 261, 52 N. W. 861.

See infra, § 1855.

10 The States which have enacted this statute, are enumerated, supra, § 506.

11 This section is not contained in the English Sale of Goods Act, but section 11 (1) (a) of that act authorizes the buyer to take title to goods which do not comply with the contract and, thereafter, hold the seller liable in damages. The latter part of the American section imposes a qualification of

It amounts to this, that the seller's tender of the goods is treated as an offer of them in full satisfaction, but the buyer is allowed a reasonable time for accepting the offer. Moreover, if he declines to take the goods in full satisfaction he need not return them. The practical advantages of the statutory rule, and its ease and certainty of application commend it.12

§ 715. Damages recoverable by the buyer.

If it be admitted that the acceptance of the goods does not debar the buyer from complaining of the inferior quality of the goods, it is none the less true that the seller has a right of action for the price. The inferior quality of the goods is not an absolute defence.13 Where a rescission of an executed sale is allowed as a remedy for breach of warranty, the buyer may return the goods and thereby defeat all right on the part of the buyer to recover any part of the price.14 But where the buyer retains the goods, his only redress, assuming that his acceptance of the goods is not a bar to all redress whatever, is an action or counterclaim for damages suffered because of the inferior quality, or a recoupment from the price. If, however, the goods received are worthless for any purpose whatever, it is obvious that the recoupment allowed the buyer would equal the agreed price. In such a case, therefore, and in such a case only, is defective quality of the goods an absolute dethe buyer's rights which is justified by business practice and by some decisions as well as by the law on the Continent of Europe.

This section changes the law of New York. Peuser v. March, 167 N. Y. App. D. 604, 607, 153 N. Y. S. 381, aff'd 218 N. Y. 505, 113 N. E. 494; Marx v. Locomobile Co., 82 N. Y. Misc. 468, 144 N. Y. S. 937; Regina Co. v. Gately Furniture Co., 171 N. Y. App. D. 817, 157 N. Y. S. 746; Mastin #. Boland, 178 N. Y. App. D. 421, 165 N. Y. S. 468; Mason v. Valentine Souvenir Co., 180 N. Y. App. D. 823, 168 N. Y. S. 159; Majestic Coal Co. v. Bush, 171 N. Y. S. 662; Altkrug v. Wm. Whitman Co., 185 N. Y. App. D. 744, 173 N. Y. S. 669. Other cases de

cided under the section are: Rittenhouse-Winterson Auto Co. v. Kissner, 129 Md. 102, 98 Atl. 361; Gascoigne v. Cary Brick Co., 217 Mass. 302, 104 N. E. 734; M. & M. Co. v. Hood Rubber Co., 226 Mass. 181, 115 N. E. 234; Trimount Lumber Co. v. Murdough, 229 Mass. 254, 118 N. E. 280.

13 Dalton v. Bunn, 137 Ala. 175, 34 So. 841; Trippe v. McLain, 87 Ga. 536, 13 S. E. 523; American Theater Co. v. Siegel, 221 Ill. 145, 77 N. E. 588, 4 L. R. A. (N. S.) 1167; Barkalow v. Pfeiffer, 38 Ind. 214; Mackey v. Swartz, 60 Iowa, 710, 15 N. W. 576; Fossum v. Holland (N. Dak.), 171 N. W. 870.

14 See infra §§ 1461 et seq.

fense to action for the price.15 Even in jurisdictions where the seller's acceptance of title does not bar subsequent action for inferiority of the goods or recoupment on account of such inferiority in an action for the price, it may be important to determine whether the buyer knew or ought to have known the defective quality of the goods before he used them. If he knew of the defect or ought to have known of it he cannot recover consequential damages caused by using the goods. 16

§ 716. Express provisions of the contract.

Though the mere acceptance of title to the goods should not necessarily be regarded as an agreement to accept the goods in full satisfaction of the seller's obligations, by the express terms of the contract such a result may be brought about. It is not uncommon for contracts to provide for special inspection of the goods, not simply as a preliminary to the buyer's ownership of the goods, but as a final determination or arbitration of the question whether the seller has performed his contract. 17 Again, the contract may provide for a certain period of trial, and thereby imply that if after such trial the buyer

15 Badger ". Phinney, 15 Mass. 359, 8 Am. Dec. 105; Kerr v. Haymaker, 20 Mo. App. 350; McCormick Harvesting Mach. Co. v. Brady, 67 Mo. App. 292; Heimann v. Hatcher Mercantile Co., 106 Mo. App. 438, 80 S. W. 729; Hallwood Cash Register Co. v. Berry, 35 Tex. Civ. App. 554, 80 S. W. 857. See also Buick Motor Co. v. Reid Mfg. Co., 150 Mich. 118, 113 N. W.591.

16 Day v. Mapes-Reeve Construction Co., 174 Mass. 412, 54 N. E. 878. In this case the contract called for "common hard brick." The buyer had an inspector who rejected some brick but the inspector permitted some soft brick to be accepted and used. The defects could have been detected and indeed the inspector knew that some soft brick was being used. The buyer claimed damages for the expense of substituting hard brick for the soft brick which had been used. The court

refused to allow this, and rightly, for the injury of which the plaintiff complained was due to his own fault in using the soft brick, knowing or having reason to know its character. The seller, however, was only entitled to the value of soft brick and this value was all that he obtained. See also Henderson Elevator Co. v. North Ga. Milling Co., 126 Ga. 279, 55 S. E. 50; Carson v. Bunting, 154 N. C. 530, 70 S. E. 923; Wright v. Computing Scale Co., 47 Wash. 107, 91 Pac. 571. Cf. Gascoigne v. Cary Brick Co., 217 Mass. 302, 104 N. E. 734.

17 See for example, Heyworth v. Hutchinson, L. R. 2 Q. B. 447; Carleton v. Lombard, 149 N. Y. 137, 43 N. E. 422. In Victor Chemical Works v. Hill Clutch Co., 152 Fed. 393, 81 C. C. A. 519, a term in a contract that acceptance should be a waiver of any claim for delay was held binding.

concludes to take the goods he shall take them as full performance of the seller's obligation. 18 The obligation of the seller may also be made conditional upon certain performance by the buyer. A warranty may by its express terms be enforceable only by returning the goods, 19 or the right to sue on the warrranty may be made conditional upon the prior payment of the purchase price.20

717. Rule of the Civil Law.

In the Civil Law it seems to be the rule that acceptance of the goods does not involve a release of the seller's obligation-at least if the buyer expressly gives notice of his claim as soon as the defect is discovered. A French writer, 21 writing of the German law prior to the enactment of the German Civil Code and of the present Commercial Code says: "In the first place it is very certain that if the defendant not only has received delivery but has accepted and approved it as regular and perfect, he has thereby recognized that the performance is in conformity with the contract, and he is debarred, whatever happens, from testing its validity. But what is necessary to observe is that as a basic rule the simple receipt, and by receipt is not meant a delivery made without the knowledge or participation of the recipient, does not of itself imply approval of the performance and recognition of its validity. Therefore, the simple fact does not take away from the creditor the rights which belong to him because of inadequate performance. It may be, and it is an opinion which has been upheld, that if one sets up after ap

18 See Williston, Sales, § 272.

19 This is a common provision in sales of machinery. Davis v. Robinson, 67 Iowa, 355, 25 N. W. 280; McCormick Harvesting Machine Co. v. Brower, 88 Iowa, 607, 55 N. W. 537; Hefner v. Haynes, 89 Iowa, 616, 57 N. W. 421; Acker v. Kimmie, 37 Kans. 276, 15 Pac. 248; Champion Machine Co. v. Mann, 42 Kans. 372, 22 Pac. 417; Walters v. Akers, 31 Ky. L. Rep. 259, 101 S. W. 1179; Guhy v. Nichols & Shepherd Co., 33 Ky. L. Rep. 237, 109 S. W. 1190; Jasper County Bank v. Barts, 130 Mo.

App. 635, 109 S. W. 1057; Sandwich Mfg. Co. v. Feary, 34 Neb. 411, 51 N. W. 1026; Davis v. Iverson, 5 S. Dak. 295, 58 N. W. 796. As to waiver of a notice in the manner required by a condition in a warranty, see Buchanan v. Minneapolis Threshing Machine Co., 17 N. Dak. 343, 116 N. W. 335.

20 Case Threshing Machine Co. v. Smith, 16 Or. 381, 18 Pac. 641. Cf., however, Campbell v. Lodge, 76 Kans. 400, 92 Pac. 53.

21 Raymond Saleilles, 7 Annales De Droit Commercial, Pt. 2, 42 (1893).

parent performance of the contract a refusal to pay because of bad quality or defective performance, the fact that performance has been received must involve a change in the burden of proof, but this is an entirely different question. What is necessary to understand thoroughly now is that receipt of performance as a basic rule and by itself does not take away from the one who receives delivery the rights which belong to him at common law on account of nonperformance." In a note to this passage the author adds that the jurisprudence of France is settled to the same effect. By provision of the German Commercial Code 22 if goods are sent from another place prompt examination must be made and immediate notice of the defects given. Failure to do this is conclusive in regard to patent defects and notice of latent defects must be given as soon as the defects are discovered.

§ 718. Rescission of acceptance.

Whether acceptance by the buyer is merely an assent to become owner or is also an agreement that the transfer of the property shall be a complete satisfaction of the seller's obligations, the acceptance is subject to the universal rule that assent procured by fraud or given under a mutual mistake of a sufficiently material fact of both parties may be rescinded.23 The remedy of rescission for breach of warranty which is allowed by the Uniform Sales Act and by the law of many States also is important to consider in this connection.24 But if the parties agree either at the time of making the original bargain, or subsequently, that specific goods with whatever qualities they may have shall be taken in full satisfaction of the seller's obligation, the transaction obviously cannot be rescinded in the absence of fraud or mistake.

§ 719. Acceptance of part of goods tendered.

Where the buyer accepts delivery of part of a quantity of goods which are tendered to him, the case may present any of

several different states of fact.

22 Handelsgesetzbuch, Art. 377 (Art. 347 in old Handelsgesetzbuch).

seq.

23 See infra, §§ 1486 et seq., 1535 et

24 See infra, § 1461.

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