
    Zipp Manufacturing Company, Respondent, vs. Pastorino and others, Appellants.
    
      December 11, 1903
    
    January 12, 1904.
    
    
      Sale of chattels: Opportunity for test: U,se of unnecessary quantity.
    
    Where goods are sold under an agreement that they may' he returned if, upon fair test, they do not prove satisfactory, the-purchaser, in making the test, can use such quantity only as is fairly and reasonably necessary to determine their quality, and if he uses more than such quantity he makes the goods his own and loses the right of rejection.
    Appeax, from a judgment of tbe superior court of Milwaukee county: J. 0. Ludwig, Judge.
    
      Affirmed.
    
    For tbe appellants there was a brief by Boemer & Aarons, and oral argument by C. L. Aarons.
    
    For tbe respondent there was a brief by Miller, Noyes & Miller, and oral argument by W. B. Hiclcman.
    
   WiNSiow, J.

This is an action to recover tbe purchase price of a barrel of vanilla sold by tbe plaintiff to tbe defendants, who were wholesale manufacturers of candy, under an agreement that if, upon fair test, it did not prove satisfactory it might be returned. The defense was that the vanilla was of poor quality and proved unsatisfactory upon a test being, made, and was returned. A verdict for the plaintiff was directed on the ground that the evidence showed without dispute that the defendants had accepted the vanilla by using in their business a far larger amount than was reasonably necessary for testing purposes. Examination of the evidence shows that the direction was plainly right. It appeared without dispute that a satisfactory test could be made by the use of a few ounces; also that the defendants used from four to six ounces daily in the manufacture of candy for a period of more than six weeks, during which time they made and sold about three tons of candy flavored with the vanilla, although by their own admissions they discovered that it was not satisfactory after making the first test. For testing purposes they could only use such quantity as was fairly and reasonably necessary to determine its quality. Cream City C. Co. v. Friedlander, 84 Wis. 53, 54 N. W. 28. When they went beyond this, as they unquestionably did in this case, they made it their own, and lost the right of rejection.

By the Court. — Judgment affirmed.  