right, in the case at bar, to offset, against plaintiff's claim for the contract price of the machines, such damages as they were able to show that they had sustained from a failure to fulfill the guaranties, if there was such failure.

The subject presents itself under two aspects: first, were the machines such as they were warranted to be in the contract? second, if they were not such as they were warranted to be, was there such an acceptance of them as would preclude the defendants from insisting upon damages for the breach?

The case seems to have been tried mainly upon the theory suggested by the first question. The plaintiff introduced proof to show that the machines did fulfill the guaranties, while the defendants produced evidence to show that they did not fulfill the guaranties. In other words, the question most prominently presented to the minds of the jury was, not whether there had been a waiver of existing defects, but whether or not any defects actually existed. Upon the latter subject they were most fully and elaborately instructed by the court. The court gave nine or ten instructions asked by the defendants, authorizing the jury to give them damages for the breach of the warranties if the jury should find from the evidence that the machines did not fulfill the guaranties. These instructions all adopt and express the theory of the law contended for by the counsel for appellants. They announce over and over again, that the defendants were entitled to damages if the machines were not what they were warranted to be as to cooling capacity for rooms and hogs, as to amount of power and fuel and piping, etc., and as to every other particular specified in the contract. The jury by their verdict and the Appellate Court by their judgment of affirmance have found the fact to be that the defendants had not suffered the damages claimed by them. Hence, such fact is settled beyond our power to change it.

#

Where the contract for the sale of the goods is an executory one, and the time for examination, whether fixed by the contract or allowed by the law, has passed, the buyer may refuse to accept the goods and may return them, or he may accept them and sue for breach of warranty, or rely upon the damages for such breach in reduction of the contract price. Benjamin on Sales, 4th Am. ed., vol. 2, §§ 1346, 1347, 1348, etc.; Doane v. Dunham, supra; Owens v. Sturges, supra; Mears v. Nichols, supra. If he

desires to rescind the contract and return the goods, he must offer them back as soon as he discovers the breach, or after he has had a reasonable time for examination; such right to rescind and return is waived by retaining and continuing to use the goods longer than is necessary for a trial of them.

There is some evidence tending to show that Viles, one of the defendants, requested the plaintiff to remove the machine. Such request if made would indicate an intention on the part of the defendants not to accept the machine, but to rescind the contract. Hence, no harm was done by giving the plaintiff's eighth instruction. That instruction merely told the jury that the right of the buyer to reject the article scld to him, or, in other words, his right to return it and rescind the contract, might be waived or lost by acts inconsistent with the ownership of the vendor or by the continued use of the article after knowledge of the defects. But the impression was in no way conveyed to the minds of the jury that, if defendants elected to accept the machine and not to return it, their right to offset damages for breach of warranty against the contract price would be waived by such acts and such continued use as are specified in the instruction. Waiver of the right to return the machine is one thing; waiver of the right to claim damages is another and entirely different thing. The third instruction given for the defendants expressly told the jury that "the defendants were not bound to return the said machines and apparatus, if found not to be according to the warranty, but might keep the same, and, when sued for the price, set up such warranty and the breach thereof as a defense, and, if proven, be allowed the amount of damages they have sustained by reason of the breach of the warranty."

It is also to be observed that the word "acceptance," as used in reference to the subject-matter of this controversy, has two significations. Where goods are sold under an executory contract, there may be an acceptance of them in full discharge of the contract, or there may be an acceptance of them in such sense that the buyer retains and uses them and becomes vested with the title and ownership of them, but reserves the right to claim damages for their defects. This distinction is recognized in Estep v. Fenton, supra, and in Mears v. Nichols, supra. It is also recognized in the fourth instruction given for the defendants in this case, which told the jury that "the defendants

are not prevented from setting off the damages they may have sustained by reason of the performance of the contract in a manner different from the agreement merely because they may have done acts amounting to an acceptance of the machine. They could only be prevented from setting off such damages so sustained in case they had accepted the machine in full discharge of the contract." So, also, the seventh instruction given for the plaintiff contains these words: "If the jury shall believe from the evidence that, prior to the bringing of this suit, defendants did accept said machine in full discharge of the contract, then the jury are instructed that defendants are not entitled to set off or recover in this action any damages resulting to them, if any, by reason of plaintiff's failing to meet the guaranties made by him in said contract." Under these and other instructions that were given, the jury could not have been led to believe, that the right of the defendants to claim damages for breach of the warranties was cut off or waived by any other kind of acceptance than an acceptance in full discharge of the contract.

*

Judgment affirmed.

CHAPTER XIX.

THE STATUTE OF FRAUDS.

Contract for Sale: Massachusetts Rule.

GODDARD v. BINNEY.

115 Mass. 450. 1874.

Contract to recover the price of a buggy built by the plaintiff for the defendant.

Trial in the Superior Court, before Dewey, J., who reported the case for the consideration of this court in substance as follows:

The plaintiff, a carriage manufacturer in Boston, testified that the defendant came to his place of business in April, 1872, and directed the plaintiff to make for him a buggy, and the plaintiff entered the order in his order-book; the defendant gave directions that the color of the lining should be drab, and the outside seat of cane, and as to the painting, and also that the buggy was to have on it his monogram and initials. The sum of $675 was agreed as the price. It was to be done in or about four months. The plaintiff immediately began work upon the buggy and made every part, it being painted, lined, and with the initials, as ordered.

The last of August, when the buggy was nearly completed, wanting only the last coat of varnish, and the hanging of it on the wheels, the defendant came to the plaintiff's place of business and asked when it would be done. The plaintiff replied in about ten days, and asked the defendant if he might sell the buggy, or if he wished it, as he, the plaintiff, had opportunities of selling it to others. The defendant then inquired if the plaintiff could furnish him another if he sold that, to which he replied he could not, as he was going to give up the business of manufacturing, and that unless he took this he could not have any. The defendant then said he would keep this one.

The defendant did not at this, nor at any other time, see the

buggy. The buggy was finished September 15, in accordance with the original order. It is usual to keep carriages some time after they are finished to let the paint and varnish harden.

October 14, 1872, the plaintiff sent to the defendant the following bill: "Boston, October 14, 1872. Mr. H. P. Binney. Bo't of Thos. Goddard, one new cane seat buggy, $675. Rec'd Pay't. (Buggy was finished Sept. 15.)"

The bill was presented by a clerk of the plaintiff. The defendant, after looking at it, said he would see the plaintiff soon. The bill was in the plaintiff's handwriting and was kept by the defendant. The same clerk called again soon after and asked the defendant for a check, to which he replied that he would pay it soon, and would see the plaintiff. Calling a third time, before the fire of November 9th, the defendant said, "Tell Mr. Goddard I will come and see him right away." By the fire of November 9, 1872, this buggy and all the property on the plaintiff's premises were destroyed. After the fire the plaintiff again called on the defendant for payment. He wanted to know if it was insured, and said he would see the plaintiff about it.

After the buggy was finished, it was kept with the completed work on the plaintiff's premises; and it was at all times after it was finished till burned worth and could have been sold by the plaintiff for upwards of $700, the value of buggies of the plaintiff's manufacture having advanced after the contract was made in April.

AMES, J. Whether an agreement like that described in this report should be considered as a contract for the sale of goods, within the meaning of the Statute of Frauds, or a contract for labor, service, and materials, and therefore not within that statute, is a question upon which there is a conflict of authority. According to a long course of decisions in New York, and in some other States of the Union, an agreement for the sale of any commodity not in existence at the time, but which the vendor is to manufacture or put in a condition to be delivered (such as flour from wheat not yet ground, or nails to be made from iron in the vendor's hands), is not a contract of sale within the meaning of the statute. Crookshank v. Burrell, 18 Johns. 58; Sewall v. Fitch, 8 Cow. 215; Robertson v. Vaughn, 5 Sandf. 1; Downs v. Ross, 23 Wend. 270; Eichelberger v. M'Cauley, 5 Har. & J. 213.