Rosenfield v. Swenson

• Decision Date: 05 January 1891
• Citation: 47 N.W. 718,45 Minn. 190
• Parties: ROSENFIELD ET AL. v SWENSON ET AL.
• Court: Minnesota Supreme Court

45 Minn. 190

47 N.W. 718

ROSENFIELD ET AL.vSWENSON ET AL.

Supreme Court of Minnesota.

Jan. 5, 1891.

(Syllabus by the Court.)

1. Where goods are sold upon condition as to the kind and quality, and also upon the condition that they shall be satisfactory to the vendee, it is his duty to examine them promptly, and if they do not comply with the conditions as to kind and quality, and are not satisfactory, to notify the vendor within a reasonable time that he will not accept them.

2. From the circumstances appearing in this case, it is held that a delay of six weeks, after an examination and discovery as to the kind and quality of the goods delivered, in notifying the vendors that they were not satisfactory to the vendees, and would not be kept, was unreasonable and inexcusable. Such a course of conduct amounted to an acceptance of the goods.

Appeal from municipal court of Minneapolis; EMERY, Judge.

Akers & Lancaster, for appellants.

Penney & Rogers, for respondents.

COLLINS, J.

The plaintiffs in this action appeal from an order denying their motion for a new trial. From the findings of fact made by the court, a jury trial having been waived, it appears that plaintiffs were wholesale and the defendants retail dealers in spirituous liquors in the same city, their places of business being but a few blocks apart. It was orally agreed between them that the former should sell and deliver to the latter two barrels-97 gallons-of a certain kind and quality of whisky at a stipulated price per gallon, and that if it was not of the kind and quality stipulated, and defendants were not satisfied with it, the plaintiffs would take it back. It was delivered to defendants at their place of business on July 13, 1889, and on the same day they discovered that it was not of the kind or quality agreed upon, and was not satisfactory to them. The court further found that defendants kept and retained possession of the whisky and wholly failed to notify plaintiffs of their discovery as to its kind and quality and that they were not satisfied with it, until August 24, 1889, 42 days after delivery and examination of the goods. On such findings judgment should have been ordered for the plaintiffs. It was not a question of the validity of the sale, under the statute of frauds, when it was made, but solely one as to whether, subsequently to the delivery, there had been a course of conduct on defendants' part amounting to, and which must be considered as, an acceptance....