Opinion
No. 37660.
November 20, 1950.
1. Sales — acceptance by buyer — long continued use after discovery of alleged unsuitable and unsatisfactory condition.
Where the buyer of refrigeration equipment continued to use it for a long period of time after discovery of its alleged unsatisfactory and unsuitable condition and gave no notice of its rejection and made no offer to return it to the seller, such conduct constituted an acceptance, and made the buyer liable for the balance of the contract purchase price.
Headnote as approved by Hall, J.
APPEAL from the circuit court of Yalobusha County; JOHN M. KUYKENDALL, Judge.
Leon E. Provine, and Kermit R. Cofer, for appellant.
Cited the following cases: Red Snapper Sauce Co. v. Bolling, 95 Miss. 752, 50 So. 401; Industrial Finance Corp. v. Wheat, 142 Miss. 537, 107 So. 382; Grenada Auto Co. v. Waldrop, 188 Miss. 468, 195 So. 491; and summed up their argument: Instead of acting promptly to avoid the sale and the payments as it was their duty to do, Hanischfeger Sales Corp. v. Sternberg Dredging Co., 189 Miss. 73, 191 So. 94, they kept and used the equipment, executed written evidence of their contract, and bound themselves to pay the purchase price. Stone Stone, for appellee.
It appears to us that the case of Viking Refrigerators, Inc. v. Farrell, 180 Miss. 181, 176 So. 910, fits this case. There was the same effort to prevent the defense made by the buyer of the machine; the same effort to go down the line and nullify the efforts of the buyer to get the benefit of his warranties, and every single feature of the case cries out against the effort that was made by the appellees in the case at bar.
The instruction first given for the defendants is the only one that is proper according to the law and the testimony and it told the jury that if they believed from the evidence that the box was bought and sold as a deep freezing unit and was ineffective for that purpose and never could be used as such, then the notes sued on can not be collected and they will find for the defendants. That was all there was to the lawsuit and that was strengthened by the third instruction for the appellees that showed if he, the plaintiff, came to service the box after complaint and the box could not be rendered suitable and useful for the purpose for which bought, then the jury would find for appellees.
Appellant is a dealer in refrigeration equipment manufactured by others and in the repair and service of such equipment. On June 25, 1946, he delivered to appellees a "deep freeze" box and unit for use by them in their cafe business, the price of which was $1,257.45 divided into a down payment of $360.45 and a credit payment of the remainder. Appellees executed and delivered ordinary promissory notes to appellant for $260.00 balance due on the down payment, and two months thereafter, on August 25, 1946, they executed to appellant a conditional sale contract for the balance of the purchase price payable in fifteen consecutive monthly installments. This contract provided that the purchaser acknowledged delivery and acceptance of said property in good order, and that "no warranties, express or implied, have been made by the seller unless endorsed hereon in writing." No warranties were endorsed on the contract.
The conditional sale contract was assigned by appellant to a finance company, and appellees promptly and regularly paid every installment due thereon until it was fully liquidated. They did not, however, pay to appellant any portion of the $260.00 balance due on the down payment evidenced by the notes and eventually appellant brought suit to recover thereon. Appellees defended on the ground that appellant had warranted the box and unit to be in good and workable condition and that it was never in such condition and is now worthless. They testified that it started giving trouble on the very next day after it was delivered to them and constantly thereafter continued to give trouble, but nevertheless they admitted that they continued to use it for a long period of time, in fact, for approximately two years according to one of their witnesses. There is no sort of claim that they ever tendered the box and unit back to appellant but they still have it in their possession. The trial court refused a peremptory instruction requested by appellant and submitted the case to a jury which found in favor of appellees.
In our opinion, the requested peremptory should have been granted. The case of Lumbermen's Supply Company v. Poplarville Sawmill Company, 117 Miss. 274, 78 So. 157, is precisely in point. (Hn 1) The continued use of this refrigeration equipment by appellees after discovery of its alleged unsuitable and unsatisfactory condition, in the absence of notice of rejection and return or offer to return it to appellant, constituted an acceptance thereof on the part of appellees. This acceptance is emphasized by the execution of the conditional sale contract long after discovery of the alleged unsatisfactory condition of the equipment and the acknowledgment therein that it was accepted "in good order," and by the further fact that all the monthly installments on said contract were promptly paid without complaint or question as they fell due. See also Freeman v. Keene, Miss., 49 So. 567.
The judgment of the lower court is accordingly reversed and judgment will here be entered in favor of appellant and against appellees for $260.00 principal due on the notes, plus interest from the respective maturity dates thereof as therein specified, plus 10% of such principal and interest as attorney's fees in accordance with the provisions of the notes.
Reversed and judgment here.