
    12061
    L. D. POWELL CO. v. LEVY
    (134 S. E., 415)
    Sales. — Retention of law books for nearly four years, without objection to their usefulness, held waiver of any breach of implied warranty.
    Before Townsend, J., Lee,
    fall term, 1925.
    Affirmed
    Action by the L. D. Powell Company against M. M. Levy. Judgment for plaintiff, and defendant appeals.
    
      Messrs. Datum & Jermings, for appellant,
    cite: Waiver of defects by vendee is question for jury: 115 S. E., 817; 69 S- E., 881. Case distinguished: 131 S. E.,'620.
    
      Messrs. Reynolds & Reynolds, for respondent,
    cite: Directed verdict for plaintiff proper: 131 S. E-, 620; 128 S. C., 434.
    August 27, 1926.
   The opinion of the Court was delivered by

Mr. Justice Cothran,.

Action for balance alleged to be due upon a written contract for the sale and purchase of certain law books. The contract was dated October 25, 1920, and the defendant agreed to pay $8' per month, beginning January 15, 1921. The books were.shipped about December 30, 1920, and were received by the defendant early in January. On January 15, 1921, he remitted $8 as agreed. On March 5th he made a second payment of $8. He has made no other payments, and now defends upon the ground that' the books are utterly worthless.

On December 12, 1921, after having had possession of the books for almost a year, he wrote the plaintiff company that he was not in a position to pay for the books, and offering to pack them up and send them back. No complaint of the books was made in this letter. Between April, 1921, and June, 1924, the plaintiff bombarded the defendant with letters and drafts, but received no replies or remittances. Later the account was placed in. the hands of attorneys. In September, 1924, after notice, the defendant wrote the attorneys that he still had the books, that they were as good as new, and that he would ship them whenever advised. Still no complaint as to the alleged breach of implied warranty, no notice of which was communicated to the plaintiff until answer was served.

Upon the trial his Honor, Judge Townsend, directed a verdict for the plaintiff upon the ground that the defendant had received the books, had had nearly four years’ use of them with full opportunity of inspection, had made no complaint, and must be held to have waived all questions as to warranty.

We think that the circuit Judge was thoroughly justified in his action, and the judgment is accordingly affirmed.

Messrs. Justices Watts, Brease and Stabrer and Acting Associate Justice Ramage concur.

Mr. Ci-iiEE Justice Gary did not participate.  