
    Empire Steam-Pump Co. v. Inman.
    
      (Supreme Court, General Term, Fourth Department.
    
    February, 1891.)
    1. Sale— Acceptance by Purchaser.
    • Plaintiff sold to defendant a pump, under an agreement by which defendant was to set up the pump, and give it 30 days’ trial, and, if it did not work satisfactorily to defendant, he was to return it at the end of the 80 days; otherwise, defendant, was to keep the pump, and pay for it. It appeared that defendant kept the pump, for about 5 months after the expiration of the 30 days, using it at intervals, though he complained at times to plaintiff of its failure to work properly, and received instructions as to remedying the defects complained-of. Held, that defendant'accepted the pump, and was liable for the price.
    2. Appeal—Harmless Error.
    It was not prejudicial error in such case to refuse to allow defendant to testify as to whether the pump worked satisfactorily “when connected with the street, water-main, ” since the time for the trial of the pump had expired, and it was not. represented as capable of working under pressure from the water-mains.
    Appeal from judgment on report of referee.
    Action by the Empire Steam-Pump Company against Horace Inman. Judgment was entered against defendant, and he appeals.
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      Peter J. Lewis, for appellant. Kilby & Kellogg, for respondent.
   Hardin, P. J.

Plaintiff delivered to the defendant one Ho. 2 steam-pump,, which it had agreed to sell to the defendant for the sum of $140. The referee finds, as a matter of fact, “that the delivery of said steam-pump to the-defendant was made in pursuance of an agreement in writing, entered into, between the plaintiff and the defendant on or about the 13th day of October, 1886, whereby the plaintiff agreed to sell and deliver to the defendant at the city of Amsterdam the pump aforesaid, for the sum of $140; that defendant was to put up the said pump and give it a trial of 30 days, and, if said pump did not work entirely satisfactorily to the defendant, he was to return the same to the plaintiff at the end of said 30 days’ trial, at the expense of the plaintiff; otherwise, defendant was to keep said pump, and pay therefor the sum of $140. ” While we find in the appeal-book a contrariety of evidence in respect to the facts stated in the finding which we have quoted, we think the evidence warranted the referee in making such finding, and that the same is neither contrary to evidence nor against the weight of evidence. The referee further found as a matter of fact, viz.: “That since about November 23, 1886, the said pump has been and remained in the possession of the defendant, at Amsterdam, aforesaid, and from about January 1, 1887, to about the month of April, 1888, the defendant continued to use the said pump at intervals, although complaining to plaintiff from time to time of its failure to work properly, and asking and receiving instructions from plaintiff how to remedy the defect complained of.” There is evidence to support the finding which we have just quoted. The referee further found, viz.: “That, at the time of the delivery of said pump to the defendant, it was in perfect condition as a suction pump.” The referee found as a conclusion of law “that the acts of the defendant in retaining and using the said pump for the time and in the manner aforesaid amounted to an acceptance of the same by him.” Defendant has taken an exception to this conclusion of law, and his learned counsel insists to us that it presents error. We think otherwise. We think, upon the evidence found in appeal-book, and upon the findings of fact made by the referee, he was justified in holding as a matter of law that the defendant had accepted the pump and became liable for the contract price. In Brown v. Foster, 108 N. Y. 387, 15 N. B. Rep. 608, in a case somewhat similar to the one before us, it was said, viz.: “While the vendee is entitled to- a reasonable time for examination, long enough to put the machinery in motion and see it operate, if he seeks to reject it, as not in accordance with the contract of sale, he must do nothing, after discovering its true condition, inconsistent with the vendor’s ownership. The intent of the vendee in using the property after discovery of defects may be gathered from his aqts, as well as his words, and a statement of a refusal to accept does not, as matter of law, show non-acceptance or prevent the acts from being taken as substantial proof of an acceptance, not for examination, but for use.” It seems from the evidence in the appeal-book that the defendant was to have 30 days to try the pump and ascertain its qualities and capacity and usefulness, and during that period make such tests as would enable him to either decline to become the purchaser thereof or to accept the same in pursuance of the order he had made for the pump. He did not reject it in the 30 days contemplated by the terms under which he received the same. He continued in the use of the same long after the expiration of the 30 days. His use of the pump and acts in relation thereto amounted to an acceptance of the same. The referee found as a matter of fact that the defendant “from about January 1, 1887, and about the month of April, 18.88, continued to use the pump at intervals. ” It appears by the evidence that the defendant used the pump for a considerable length of time under conditions not known to plaintiff, or stipulated for by him in the communications that he had with the plaintiff in respect to the pump. The defendant’s offer to return the pump in October, 1888, was quite late. He had by his use of the pump allowed the same to become rusty and otherwise impaired, and it was not in his power then to return the same in as good a condition as when he took it.

2. We think no prejudicial error was committed by the referee in disallowing the question put to the defendant as to whether or no the pump worked satisfactory to the defendant “ when connected with the street water-main, or when connected with the tank or reservoir. ” The period in which the test was to have been made had expired, and, besides, the pump was not sold by the plaintiff or represented to be capable, of working under-pressure from the city water-mains. There are several other exceptions to rulings made by the referee, and refusals to find, which we have looked at, but, in the view we have taken of the case, we do not deem them of such a nature as to warrant us in saying that the rulings and refusals of the referee were prejudicial to the appellant. We are of the opinion that the conclusion of the referee should be sustained. J udgment affirmed, with costs. All concur.  