§ 1379. Express acceptance.- The acceptance by the purchaser may be either express or implied. The former case may be dismissed with brief mention, for, if the buyer has expressly manifested or declared his acceptance of the goods, there can, in the absence of fraud, be ordinarily no further act or evidence of his approval required.1 ably necessary for the purpose, or if, having once elected to reject the goods, they had since done anything [this use] inconsistent with ownership in the seller, the seller should recover. The jury found for the buyer, but this judgment was reversed by the supreme court. Said the court: "Could the plaintiff, after having decided that the material was wholly unfit, and notified the defendant of its decision and its rejection of the material, proceed to use three-quarters of a ton of the material in making a practical test, and still insist on its right of rejection? It seems clear that the plaintiff was entitled to a reasonable time after actual receipt of the material to exercise the right of rejection in case the goods did not conform to the contract. Benjamin, Sales (6th ed.), § 703. If this fact could only be ascertained by a practical test, the plaintiff also had the right, within such reasonable time, to make such practical test, using only so much of the material as was reasonably necessary for the purpose, without thereby losing the right of rejec tion. Benjamin, Sales (6th ed.), § 896; Philadelphia Whiting Co. v. Detroit White Lead Works, 58 Mich. 29, 24 N. W. R. 881. But this test is plainly for the purpose only of enabling the purchaser to decide whether the material conforms to the contract. If the fact can be determined by inspection alone, the test is not neces sary, and the use of the material, therefore, clearly unjustifiable. Now, in this case the plaintiff's officers determined at once, and upon inspection alone, that the material was unfit for their purposes, and so notified the defendant, and rejected the entire lot. They did not claim to need any test. They took their position definitely. After that act they could not deal with the property in any way inconsistent with the rejection, if they proposed to insist upon their right to reject. Churchill v. Price, 44 Wis. 540. They must do no act which they would have no right to do unless they were owners of the goods. Benjamin, Sales (6th ed.), § 703. Under these rules it is evident the plaintiff had no right to use up a quantity of the material several weeks after the rejection. By the rejection it became defendant's property, if such rejection was rightful. Plaintiff had no right to use any part of it. It is claimed that the use was simply for the purpose of providing evidence of unfitness, for the purposes of the trial of this case; but one has no right to use his opponent's property for the purpose of making evidence. The act was an unmistakable act of ownership, and entirely inconsistent with the claim that the material had been rejected and was owned by defendant. It follows that the judgment must be reversed." 1 As in Saunders v. Topp (1849), 4 The cases giving difficulty, and requiring more particular investigation, are those of implied acceptance. § 1380. Implied acceptance - Retention of goods without objection beyond a reasonable time. The acceptance need not be express. It may be, and, in the cases coming before the courts, ordinarily is, implied or denied in reliance upon the circumstances of the case. The fact most frequently relied upon as the ground of an implied acceptance is that the buyer, after receiving the goods, has retained them without objection for an unreasonable period. As has been seen, the buyer has the right to inspect the goods, and is then bound to accept them if they conform to the contract, or to reject them if they do not. He is bound, however, to do one thing or the other, and that within a reasonable time; and if he simply remains inactive, neither accepting nor rejecting within a reasonable period, the law will deem his inaction to be acquiescence, and he will not afterwards be permitted to reject.1 Exch. 390, where the buyer, after examining and counting the articles, said, "It is all right." 1 Berthold v. Seevers Mfg. Co. (1893), 89 Iowa, 506, 56 N. W. R. 669 (lumber not of the dimensions agreed upon); Mackey v. Swartz (1883), 60 Iowa, 710, 15 N. W. R. 576 (safe not painted as agreed); E. A. Moore Furniture Co. v. Sloane (1897), 166 Ill. 457, 46 N. E. R. 1128 (carpets); Pennell v. McAfferty (1877), 84 Ill. 364 (furnace and ventilator); Carondelet Iron Works v. Moore (1875), 78 Ill. 65 (iron to be manufactured); Hobbs v. Massasoit Whip Co. (1893), 158 Mass. 194, 33 N. E. R. 495 (eelskins); Chase Elevator Co. v. Boston Tow B. Co. (1892), 155 Mass. 211, 29 N. E. R. 470 (an elevator). Especially where he exercises acts of dominion over the goods, as, for example, sells them. Watkins v. Paine (1876), 57 Ga. 50. See also Reed v. Randall, 29 N. Y. 358, 86 Am. Dec. 305; Gaylord Mfg. Co. v. Allen, 53 N. Y. 515; Mason v. Smith, 130 N. Y. 474, 29 N. E. R. 749; Pierson v. Crooks, 115 N. Y. 539, 22 N. E. R. 349, 12 Am. St. R. 831; Boyington v. Sweeney, 77 Wis. 55, 45 N. W. R. 938; McClure v. Jefferson, 85 Wis. 208, 54 N. W. R. 777; Locke v. Williamson, 40 Wis. 377; Morehouse v. Comstock, 42 Wis. 625; Olson v. Mayer, 56 Wis. 551, 14 N. W. R. 640; Gill v. Benjamin, 64 Wis. 362, 25 N. W. R. 445; Pratt v. Peck, 70 Wis. 620, 36 N. W. R. 410; Wood Mach. Co. v. Calvert (1895), 89 Wis. 640, 62 N. W. R. 532; FossSchneider Brew. Co. v. Bullock, 16 U. S. App. 311, 8 C. C. A. 14, 59 Fed. R. 83; McCormick Harv. Co. v. Martin, 32 Neb. 723, 49 N. W. R. 700; Minnesota Thresher Co. v. Hanson, 3 N. Dak. 81, 54 N. W. R. 311; Small v. Stevens (1889), 65 N. H. 209, 18 Atl. § 1381. What time can be deemed a reasonable one is a question of fact to be determined by the jury in view of all the circumstances of the case.1 $ 1382. Retention of goods without objection beyond agreed time. Instead of leaving the question of time to be determined subsequently in view of the circumstances of the case, the parties may expressly agree, when making the contract, upon the period within which the buyer's right of rejec tion shall be exercised or be deemed to be foreclosed; and such an agreement will be conclusive upon the buyer2 unless its provisions are waived or extended by the seller. R. 196; Farrington v. Smith, 77 Mich. 550, 43 N. W. R. 927; Childs v. O'Donnell, 84 Mich. 533, 47 N. W. R. 1108; Forsaith Machine Co. v. Mengel, 99 Mich. 280, 58 N. W. R. 305. Where the buyer delays for an unreasonable time, and in the interval the goods are destroyed by fire, the seller may recover their value of the buyer. Boyington v. Sweeney, 77 Wis. 55, 45 N. W. R. 938. In Auerbach v. Wunderlich (1899), 76 Minn. 42, 78 N. W. R. 871, defend ants sent a telegraphic order to plaintiffs for one hundred boxes. The message, as delivered, read one thousand boxes, which were sent. Defendants declined to take them, and at last plaintiffs agreed to take back the nine hundred and asked that they be returned within two weeks. No response, and plaintiffs wrote again at the end of the two weeks, asking that defendants give the matter their immediate attention. Two weeks later the defendants replied, and offered to return the boxes in two weeks more when they would not be so busy. Held, that defendants waived their original right to return the goods by neglecting to comply with the request to return them. 1 In South Bend Pulley Co. v. Caldwell & Co. (Ky., 1899), 54 S. W. R. 12, a lot of pulleys were sold with a warranty. They were wrapped in paper, and the covering of many of them was not removed until just before suit was brought, when it was seen that the wooden blocks had shrunk. Held, that the court properly refused to instruct the jury that there could be no recovery on the counter-claim unless there was an offer to return the goods within a reasonable time, the defects being such that they did not develop for some time; and what was a reasonable time under the circumstances was held to be for the jury to say. 2 As in Potter v. Lee (1892). 94 Mich. 140, 53 N. W. R. 1047, where the parties had agreed that the buyer should have ten days in which to determine whether the goods were acceptable or not; but he did nothing in that time, and was therefore held to have accepted (Farrington v. Smith, 77 Mich. 550, 43 N. W. R. 927; Childs v. O'Donnell, 84 Mich. 533, 47 N. W. R. 1108; Lee v. Bangs, 43 Minn. 23, 44 N. W. R. 671; Rosenfield v. Swenson, 45 Minn. 190, 47 N. W. R. 718, were cited and relied upon); § 1383. Acceptance after test agreed upon — Failure to give notice stipulated for. It is very common, particularly in the case of contracts for the sale and warranty of machinery and agricultural implements, to provide expressly that the buyer, on receiving the article, shall at once proceed to test it in a time and manner agreed upon, and, in case it proves defective, shall notify the seller or his agent and give him an opportunity to remedy the defect. In case the defect cannot be remedied, the seller usually agrees either to substitute a perfect article or to take back the defective one and restore what has been paid upon the purchase price. Many of the older forms of contract contain no express provision as to the effect upon the warranty of a retention of the article without the test or notice agreed upon, but most of the later forms provide expressly that a failure to make the test, or the continued use of the article without notice of defects, shall be deemed conclusive evidence that the warranty is satisfied. Warranties of these kinds are frequently spoken of as conditional warranties. § 1384. Contracts of this sort are entirely lawful and, unless their provisions are waived, must be enforced as the parties made them. The seller is bound to make the test in and Turner v. Machine Co., 97 Mich. 166, 56 N. W. R. 356, where the parties had agreed upon thirty days as the period in which the buyer should determine; and Gentilli v. Starace, 133 N. Y. 140, 30 N. E. R. 660, where there was a sale of wine "to be in good merchantable order," "to be approved by buyer within three days after delivery," and it was held that the duration of the warranty was limited to the three days specified. See also Stevens v. Hertzler (1896), 109 Ala. 423, 19 S. R. 838; Moline, etc. Co. v. Pereau (1897), 52 Neb. 577, 72 N. W. R. 956. Horne (1900), Iowa, --- 1 Courts in several cases have called In Warder, Bushnell, etc. Co. v. especial attention to the fact that 1 good faith in the manner provided for; he is bound to do it within the time agreed upon; and if the test proves unsatisfactory he must give the notice at the time, in the manner and to the persons specified. If the contract provides for replacing the article, he must allow a reasonable opportunity for these provisions cannot be disregarded, but must be enforced. See, e. g., Russell v. Murdock, 79 Iowa, 101, 44 N. W. R. 237, 18 Am. St. R. 348; Fahey v. Esterley Machine Co., 3 N. Dak. 220, 55 N. W. R. 580, 44 Am. St. R. 554; McCormick Harvester Co. v. Brower, 88 Iowa, 607, 55 N. W. R. 537. In Williams Mfg. Co. v. Standard Brass Co. (1899), 173 Mass. 356, 53 N. E. R. 862, plaintiff contracted to furnish defendant with an equipment for melting brass, which was to be subjected to a sixty days' trial and to be paid for if satisfactory to defendant. Held, that the defendant could waive the completion of the sixty days' trial at any time that he was convinced in good faith that the apparatus was not satisfactory, since the test was for his benefit. 1 The test must be a fair one. Bonham Cotton Comp. Co. v. McKellar, 86 Tex. 694, 26 S. W. R. 1056. But though the buyer is bound to give the machine a fair trial, he is not bound to make repeated trials. McCormick Harvester Co. v. Russell, 86 Iowa, 556, 53 N. W. R. 310. In Louisiana, etc. Co. v. Bass, etc. Works (1895), 30 U. S. App. 433, 16 C. C. A. 130, 69 Fed. R. 65, the plaintiff sold machinery to the defendant company under certain terms, which included a payment of $24,000, according to delays to be determined by a continuous test of four days, to be made within forty days. A test of only eight hours was made, and that not within forty days. Held, that under the evidence the eighthour test was as satisfactory as the four-day test; and that, since the delays already accorded the defendant were greater than could have been given it under any test, the plaintiff was entitled to the $24,000. 2 The buyer must perform the contract according to its terms. He must give the notice neither too soon nor too late. He must not undertake to give it until he has given the test of the kind and for the time specified. McCormick Harvester Co. v. Brower (1893), 88 Iowa, 607, 55 N. W. R. 537. In this case the warranty given with a machine required immediate notice of defects, after one day's trial, and the allowance of time for the vendor to put the machine in order. Held, that unless the day's trial revealed defects precluding the proper working of the machine, notice at the end of it was premature, and the refusal of time for the vendor to put the machine in working order deprived the vendee of his right to rescind. 3 Where the contract provides that the notice of defects shall be given both to the agent and to the manufacturer at his home office, notice to the agent only will not suffice. Fahey v. Esterley Machine Co., 3 N. Dak. 220, 55 N. W. R. 580, 44 Am. St. R. 554 (Furneaux v. Esterley, 36 Kan. 539, 13 Pac. R. 824, and Nichols v. Knowles, 31 Minn. 489, 18 N. W. R. 413, were cited); but compare with Champion |