doing so. A failure to make the test or to give the notice or permit the substitution as agreed, unless waived by the seller, will be deemed to be an acceptance of the goods, the sale becomes absolute, and the buyer's right of rejection is at an end.2 Machine Co. v. Mann, 42 Kan. 372, 22 ́ v. Mann, 42 Kan. 372, 22 Pac. R. 417; Pac. R. 417. In Aultman-Taylor Mach. Co. v. Ridenour (1896), 96 Iowa, 638, 65 N. W. R. 980, defendant purchased a machine from plaintiff with a warranty, the contract providing that notice of failure of warranty should be sent by registered letter. Defendant got the agent of the plaintiff to write a letter for him, signed it, and left it with the agent to be registered. Held, that the letter of defendant was sent within the provisions of the contract. 1 Pitts Mfg. Co. v. Spitznogle (1880), 54 Iowa, 36, 6 N. W. R. 71; Robinson v. Berkey (1900), Iowa, 82 N. W. R. 972. 2 Fahey v. Esterley Machine Co., 3 N. Dak. 220, 55 N. W. R. 580, 44 Am. St. R. 554; Minnesota Thresher Co. v. Hanson, 3 N. Dak. 81, 54 N. W. R. 311; McCormick Harvester Co. v. Brower, 88 Iowa, 607, 55 N. W. R. 537; Russell v. Murdock, 79 Iowa, 101, 44 N. W. R. 237, 18 Am. St. R. 348; King v. Towsley, 64 Iowa, 75, 19 N. W. R. 859; Bayliss v. Hennessey, 54 Iowa, 11, 6 N. W. R. 46; Wendall v. Osborne, 63 Iowa, 100, 18 N. W. R. 709; Upton Mfg. Co. v. Huiske, 69 Iowa, 557, 29 N. W. R. 621; Palmer v. Banfield, 86 Wis. 441, 56 N. W. R. 1090; Bonham Cotton Comp. Co. v. McKellar, 86 Tex. 694, 26 S. W. R. 1056; Aultman v. McKenny (Tex. Civ. App.), 26 S. W. R. 267; Springfield Engine Co. v. Kennedy, 7 Ind. App. 502, 34 N. E. R. 856; Byrd v. Printing Press Co., 90 Ga. 542, 16 S. E. R. 267; Champion Machine Co. Phelps-Bigelow Co. v. Piercy, 41 Kan. 763, 21 Pac. R. 793; Staver v. Rogers, 3 Wash. 603, 28 Pac. R. 906; Butler v. Leighton, 149 Pa. St. 351, 24 Atl. R. 308; Dewey v. Erie, 14 Pa. St. 211; Hickman v. Shimp, 109 Pa. St. 16; Stutz v. Coal Co., 131 Pa. St. 267, 18 Atl. R. 875; Central Trust Co. v. Arctic Mfg. Co., 77 Md. 202, 26 Atl. R. 493; McCormick Harvester Co. v. Hartman, 35 Neb. 629, 53 N. W. R. 566; Worden v. Harvester Co., 11 Neb. 116, 7 N. W. R. 756; Latham v. Baussman, 39 Minn. 57, 38 N. W. R. 776; Nichols v. Knowles, 31 Minn. 489, 18 N. W. R. 413; J. I. Case Thresher Co. v. Vennum, 4 Dak. 92, 23 N. W. R. 563; Turner v. Muskegon Machine Co., 97 Mich. 166, 56 N. W. R. 356; Weston v. Card, 96 Mich. 373, 56 N. W. R. 26; Pullman Palace Car Co. v. Metropolitan Street Ry. Co., 157 U. S. 94, 39 L. ed. 632. Where the contract is to test and, if unsatisfactory, return the article, the buyer who refuses or neglects to do either makes the sale absolute. Waters Heater Co. v. Mansfield, 48 Vt. 378. Where the warranty with which a machine was sold provided for notice to the vendor in case of failure to work satisfactorily, and friendly assistance from the vendee in remedying the defects, a substantial compliance was held necessary to entitle the purchaser to rescind the contract and return the machine, and the refusal of the purchaser to allow the vendor to readjust the machine was The effect of such acceptance upon the warranty will be considered in a later section.1 § 1385. Waiver of the notice. The time or manner of notice stipulated for may, indeed, be waived; and this may be done either expressly or impliedly, as where the seller or his agent requests the continuance of the test after the expiration of the time specified, or where he acts without objection upon irregular or informal notice. Waiver will also be implied where the seller disavows any further responsibility or refuses to remedy or take back the article in any event. 5 § 1386. Waiver by agent.- The power to waive the notice or return is ordinarily within the limit of the authority of the agent who made the sale; but this power may be excluded by express provision to that effect in the contract with the purchaser or by otherwise notifying him that the agent does not possess it. a waiver of its defects. Sandwich Mfg. Co. v. Feary (1892), 34 Neb. 411, 51 N. W. R. 1026; McCormick Harv. Co. v. Brower, 88 Iowa, 607, 55 N. W. R. 537. 1 See post, § 1390 et seq. 2 Snody v. Shier, 88 Mich. 304, 50 N. W. R. 252; Bannon v. Aultman, 80 Wis. 307, 49 N. W. R. 967: Sandwich Mfg. Co. v. Fearey, 40 Neb. 226, 58 N. W. R. 713; Osborne v. Baker, 103 Mich. 247, 61 N. W. R. 509; Osborne v. McQueen, 67 Wis. 392, 29 N. W. R. 636. 3 Where agent has notice in fact and attempts to remedy defect, formal notice is not necessary. Massachusetts Loan Co. v. Welch, 47 Minn. 183, 49 N. W. R. 740; Champion Machine Co. v. Mann, 42 Kan. 372, 22 Pac. R. 417; Ohio Thresher Co. v. Hensel, 9 Ind. App. 328, 36 N. E. R. 716; Dean v. Nichols (1895), 95 Iowa, 89, 63 N. W. R. 582; Peterson v. Walter A. Wood Co. (1896), 97 Iowa, 148, 66 N. W. R. 96. Notice in writing is waived where oral notice is acted upon. Briggs v. Rumley Co. (1895), 96 Iowa, 202, 64 N. W. R. 784. +Champion Machine Co. v. Mann, 42 Kan. 372, 22 Pac. R. 417; Wood Mow. & Reap. Machine Co. v. Calvert, 89 Wis. 640, 62 N. W. R. 532. Mechem on Agency, § 349; Pitsinowsky v. Beardsley, 37 Iowa, 9; Warder v. Robertson, 75 Iowa, 585, 39 N. W. R. 905. 6 Mechem on Agency, supra; Furn eaux v. Esterley, 36 Kan. 539, 13 Pac. R. 824; Nichols v. Knowles, 31 Minn. 489, 18 N. W. R. 413; Fahey v. Esterley Machine Co., 3 N. Dak. 220, 55 N. W. R. 580, 44 Am. St. R. 554. Where the contract expressly provides that "no agent or expert has any authority to add to or abridge or change it in any manner," an agent employed to repair defective ma § 1387. Acts of ownership indicating acceptance.— The buyer may also manifest an acceptance by dealing with the goods in a manner inconsistent with an intention to reject them. Selling them as his own,' giving a chattel mortgage upon them,2 consuming or otherwise beneficially using them in the course chines has no implied power to waive a provision for notice not only to the selling agent but also to the home office (Fahey v. Esterley Machine Co., supra); though a general state agent through whose office all business was done might have such power. Champion Machine Co. v. Mann, 42 Kan. 372, 22 Pac. R. 417. Under such a contract, the buyer having the right to return and having offered to return a defective machine, a new arrangement was made with the agent that the buyer should keep it and try it again the next season; it was held that this might be sustained as a substitution if not as a waiver, and that the buyer's right to reject continued. Osborne v. Baker, 103 Mich. 247, 61 N. W. R. 509; Snody v. Shier, 88 Mich. 304, 50 N. W. R. 252. 1 Chapman v. Morton, 11 Mees. & Wels. 534; Valley Iron Works v. Grand Rapids F. Mill, 85 Wis. 274, 55 N. W. R. 693; Delamater v. Chappell, 48 Md. 244. In Rock Island Plow Co. v. Meredith (1899), 107 Iowa, 498, 78 N. W. R. 233, the plaintiff contracted to sell a number of hay loaders to defendant. Before the time for their delivery defendant wrote plaintiff that the outlook for hay was very poor, and not to ship the order until advised to do so. But the order was sent, the defendant paid the freight, advertised the goods for sale, and sold part of them. Not till six months afterward did he make any objection. Held, that the exercise of these acts 4 of ownership sufficiently proved acceptance. 2 Leggett Tobacco Co. v. Collier, 89 Iowa, 144, 56 N. W. R. 417; Van Winkle v. Crowell, 146 U. S. 42, 36 L. ed. 880, 13 Sup. Ct..R. 18; Wyler v. Rothschild (1898), 53 Neb. 566, 74 N. W. R. 41. But see Osborne v. McQueen, 67 Wis. 392, 29 N. W. R, 636. 3 Cream City Glass Co. v. Friedlander, 84 Wis. 53, 54 N. W. R. 28, 36 Am. St. R. 895, 21 L. R. A. 135; Lamar Water Co. v. City of Lamar (1897), 140 Mo. 145, 39 S. W. R. 768. In Dauphiny v. Red Poll Creamery Co. (1899), 123 Cal. 548, 56 Pac. R. 451, respondent contracted to purchase one hundred and eighty cords of wood from appellant, to be delivered on the lands of the respondent, and measured and paid for by him after he had consumed certain other wood that he had on hand. The other wood had not been consumed and nothing had ever been done with the wood delivered by appellant except that five cords had been used, when it was attached as belonging to respondent and appellant claimed title. Held, that the bare fact of five cords having been used, perhaps by mistake as the evidence indicated, was not proof of acceptance. 4 Hudson v. Roos (1889), 76 Mich. 173, 42 N. W. R. 1099; McCormick Mach. Co. v. Martin (1891), 32 Neb. 723, 49 N. W. R. 700; Detroit Heating Co. v. Stevens (1898), 16 Utah, 177, 52 Pac. R. 379; Woodward v. Emmons (1898), 61 N. J. L. 281, 39 Atl. R. 703. of his business, and the like,1 have been held to be acts so far indicative of ownership, and only to be justified by it, as to be inconsistent with the position that the ownership was still in the seller by reason of non-acceptance. In Kingman v. Watson (1897), 97 Wis. 596, 73 N. W. R. 438, defendant purchased from plaintiff a threshing machine, which was warranted to be of good material and well made. If it proved unsatisfactory it was to be returned and purchaser's notes would be returned to him. Defendant found the machine defective, but used it for two years without returning or offering to return it. Held, that such use was an acceptance. In Chambers v. Lancaster (1899), 160 N. Y. 342, 54 N. E. R. 707, a purchaser of stone crushers "at once commenced to use the machinery, and continued to use it, to as great an extent as frequent breakdowns would permit, for a period of about five months." The purchaser then refused to pay on the ground that the stone crushers were comparatively worthless. Held, that such use was an acceptance, and the seller could recover the price. In Carleton v. Jenks (1897), 47 U. S. App. 734, 26 C. C. A. 265, 80 Fed. R. 937, plaintiffs contracted with defendants for a boiler to be placed in their steamer. When the work was complete, the owner, captain and chief engineer inspected it and took the steamer away without any further requirements. Subsequently, in a heavy gale, the boiler slipped from its fastenings and caused great damage. Held that, after the inspection and taking of the steamer, the plaintiffs are precluded from afterward raising the question of performance of the contract. In Brown v. Ellis (1898), 19 Ky. L. 2023, 45 S. W. R. 94, a vendor of horses represented that horses sold had a certain pedigree and promised to procure the certificates thereof for the purchaser. The latter kept and used the horses for more than a year, with no attempt to rescind for the vendor's failure to furnish the certificates. Held, that the representation was not a condition precedent to right of recovery on the purchase-money notes. In Dodsworth v. Hercules Iron Works (1895), 31 U. S. App. 292, 13 C. C. A. 552, 66 Fed. R. 483, the plaintiff sold an ice machine to defendants (plaintiffs in error). The machine should have had, by the contract of sale, a pump attached. This it did not have. Defendants used the machine in the regular course of their business for two years, though they showed that they had declined to accept the machine and requested the vendor to remove the same, within three months after its delivery. Held, that the two years' use of the machine was a waiver of the omission of the pump. 1 In Fry-Sheckler Co. v. Iowa Brick Co. (1898), 104 Iowa, 494. 73 N. W. R. 1051, plaintiff corporation agreed to put a brick dryer in the brickmaking plant of defendant, to be tested by the latter for thirty days and removed by the vendor if not satisfactory. The test proved the dryer unsatisfactory, but the defendant refused either to pay for it or allow its removal. Held, that this constituted an acceptance. § 1388. Effect of acceptance.- The goods having been accepted, the question arises, What is the effect of that acceptance upon the rights and obligations of the parties? If the contract were in all respects regularly and properly performed by the seller, the acceptance can amount only to putting the seal of the buyer's approval upon the seller's performance. But suppose that the contract has not in all respects been performed, but the buyer has accepted the goods,- what now is the effect, and, particularly, what is the effect as a waiver of the seller's default? This question may take a variety of forms, which may be separately dealt with. § 1389. As waiver of time.- And, first, what is the effect of acceptance as a waiver of default as to the time of delivery. It has already been seen that acceptance may operate as a waiver of the right to rescind, countermand or disaffirm by reason of the delay, but does it operate to prevent a recovery of damages for the delay? Lord Blackburn said: "When the contract was to deliver goods at a certain day, and that date is passed, the vendee may accept the goods and bring his action for any damages he may have actually suffered in consequence of the late delivery. He does not, by accepting a late delivery, waive any claim he may have for damages arising from the delay." Not all of the American cases lay down the rule in so unqualified a form, and much must depend upon the circumstances of each case.2 In many instances the buyer is in such a predicament that he has practically no choice, and the true rule doubtless is that the acceptance does not constitute a waiver of damages for the delay, in the absence of circumstances showing that such was the intention.3 1 1 Blackburn on Sale, p. 524. 2 See Belcher v. Sellards (1897), 19 Ky. L. R. 1571, 43 S. W. R. 676; Dignan v. Spurr (1891), 3 Wash. 309, 28 Pac. R. 529; Strain v. Manufacturing Co. (1891), 80 Tex. 622, 16 S. W. R. 625; Harber v. Moffat Cycle Co. (1894), 151 Ill. 84, 37 N. E. R. 676. But in Minneapolis Thresh. Mach. Co. v. Hutchins (1896), 65 Minn. 89, 67 3 Thus in Industrial Works v. Mitch # |