
    James W. Cooke et al., Resp’ts, v. The Underhill M’fg Co., App’lt.
    
      (Supreme Court, General Term, First Department
    
    
      Filed June 6, 1890.)
    
    Sale — Acceptance.
    Where both parties assume that up to the time of objection there was a right to reject and dealt with each other on that basis, the question as to whether, under the circumstances, there had been a sufficiently long user to constitute an acceptance should not be submitted to the jury.
    Appeal from judgment entered upon the verdict of a jury and from order denying motion for new trial.
    
      Jas. Dunne, for app’lt; Olías. D. Baker, forresp’ts.
   Van Brunt, P. J.

This action was brought to recover for an engine proposed to be furnished, delivered and set up by the plaintiffs for the defendant Under the contract the plaintiffs were to build the foundation, the defendants to do the excavating, filling or piling that might be necessary to secure a firm sub-foundation. The plaintiffs guaranteed this engine to be built in the very best manner, and to be as durable and economical as any automatic engine. In short, to use their own language, 11 We guarantee to give satisfaction or to take it out at our expense.” The engine was put in and started in April, 1887. Certain complaints having been made as to the engine, tests were made, and on the 28th of November, 1887, the defendants wrote that the engine was not giving satisfaction, and the plaintiffs were asked to remove it On the 30th of November the plaintiffs were again asked to remove it, and without considering in detail the evidence produced upon the trial, it is sufficient to say that up to this time it was conceded that the engine had not been accepted.

Other evidence was introduced showing that subsequent to that time the engine was used by the defendant, and the question submitted to the jury was whether this user was of such a character as constituted an acceptance of the engine The learned court was asked to charge the jury that if they found that the defendant never intended to and did not in fact accept the engine, then their verdict should be for the defendant This the court refused to charge except as it had charged, leaving the question as to whether there was an implied acceptance still for the jury to determine.

We think upon the conceded facts of the case that there was no such question which could be submitted to the jury. On the 28th of February, 1888, the engine was absolutely rejected by the defendants, and if they had a right at that time to reject, then there never had been an acceptance.

We think that an examination of the correspondence shows that not only had there never been an acceptance up to that time, but that the plaintiffs so understood it. On the 10th of February, 1888, the plaintiffs wrote “We are quite anxious to know what decision you have come to about the engine.”

If they had already accepted the engine, what decision could the defendants come to in respect to the engine which would be of any interest to the plaintiff.

It is clear that at the time of writing that letter the plaintiffs did not understand that the defendants had accepted this engine. On the 21st of February, 1888, the defendants wrote “We have no reason to change our views expressed in our letter of November SO, 1887 ” up to which time it is admitted there had been no acceptance. “ As you are aware the engine is remaining at Franklin at your risk. The sooner you can remove it the more agreable it will be to us.” What is the answer of the plaintiffs ? On the 25th of February, 1888, they write acknowledging the receipt of this letter of the 21st, “Before taking any decided action we want to make a statement of the case as it appears to us and will endeavor to be as brief as possible: we have no hesitation in saying, what you no doubt have inferred, that we do not want the engine to come out, and this for various reasons,” stating them. “ There are two reasons why the engine does not satisfy you and for neither of these should we be held responsible.”

And then follows an argument to show that they should not be held responsible for those reasons. And the plaintiffs claim that it is not fair, in view of all the facts, that they should be held to a technical interpretation of the promise that the engine should be entirely satisfactory to the defendants. And the letter closes “ expressing the hope that a consideration of the case, as above stated, may lead you to look upon the matter in a light more favorable to us. If, however, you are fixed in your determination, there is one point which should be understood. If we admit, which we do not, that we must take the engine out under your instructions, what is to become of the foundation?”

There is not a single pretence in this correspondence that the plaintiffs understood that the defendants had accepted this engine or that it had not a right still to reject it, if it did not comply with the contract.

The phrase “ if we admit, which we do not, that we must take the engine out under your instructions, what is to become of the foundation ?” was a dissent from nothing except that the engine could be taken out if the defendants desired whether it complied with the contract or not. There was no pretence that it could not be taken out if it did not comply with the contract. And there was no pretence that the defendants had no right to claim that it could be taken out because they had accepted it. Upon the same day the defendants write that it does not comply with the contract and that it was not satisfactory; and on the 28th that the engine was subject to the plaintiffs’ order and risk.

In view of this correspondence, it is difficult to see how the mere user of the engine during this period could be or was looked upon by either of these parties as an acceptance thereof. In fact, up to the very time when the correspondence ceased and the user of the engine ceased, it was conceded upon the part of the plaintiffs in their letter that there had been no acceptance, and they were negotiating with the defendants for the purpose of getting them to accept it.

We think, therefore, that there was no question upon acceptance which could be submitted to the jury. The only question was, as to whether the engine complied with the contract or not, and the defendants obliged to accept. This question does not appear to have been submitted to the jury, and we think that where both parties assume that up to the time of objection there was a right to reject, and dealt with each other upon that basis, the jury should not be allowed to come to a different conclusion, and say, under the circumstances, there had been a sufficiently long user to constitute an acceptance.

There seems to have been error in refusing the request charged, and the judgment must be reversed and a new trial ordered, with, costs to appellant to abide event.

Brady and Daniels, JJ., concur.  