Hyde v. Love Bros. , 1895 Ill. App. LEXIS 909 ( 1896 )

Mr. Justice Waterman

delivered the opinion of tee Court.

The case seems to have been tried upon the theory that as all iron was to be inspected on the cars before being unloaded, after the iron was so unloaded no objection thereto could be made. We do not think that appellant was concluded by a failure to inspect the iron before it was unloaded.

The contract does not provide that objections to the iron could not be made after it had been unloaded. The contract was to furnish cast iron columns, etc., for buildings to be erected in Chicago; it was to be paid for by weight. Under such an arrangement, appellees’ interest was to make the columns, etc., heavy; and appellees had an interest in whatever sand clung to the material and was weighed along with it.

Upon the trial a good deal of evidence was offered, some of which was admitted and some rejected, tending to show that the columns, etc., were made unnecessarily thick, honeycombed, lumpy, and had sand pockets, and that in consequence of this, a great deal of work had to be and was done to make the material conform to the plans and specifications.

The court held that if this work was done and these things appeared after the time provided for inspection, it was immaterial.

This was error.

The buyer under an executory contract is not, by the passing of the time for an examination, concluded as to the character of the goods and their conformity to the agreement. If they are not such as he bargained for, he may still refuse to accept, and may return them; or he may receive them and sue for breach of warranty, or recoup his damages in an action brought for the contract price. Underwood et al. v. Wolf, 131 Ill. 425; reviewing same v. same, 31 Ill. App. 637; Mears v. Nichols, 41 Ill. 207; Peck v. Brewer, 48 Ill. 50; Doane v. Dunham, 65 Ill. 512; same, 79 Ill. 131; Benjamin on Sales, 6th Am. Ed., Secs. 894, 898, 899.

A distinction exists between the acts which will constitute a waiver of a right to rescind such a contract and a right to insist upon damages for a failure to supply the goods contracted for. Benjamin on Sales, Secs. 895-901:

It does not follow that appellant, by making use of the columns, accepted them as a compliance by appellees with their contract. Appellant immediately and persistently complained of the character of the material supplied; and appears to have, after much work in making good defects therein, used the same because such course was, under his engagements, less damaging to him and appellees than would have been a return of the imperfect work.

The rulings of the trial court upon the admission of evidence and upon instructions asked, not being in accordance with the views here expressed, the judgment of the Superior Court is reversed and the cause remanded.