Standard Automobile Supply Co. v. Marshall Field & Co. , 161 Ill. App. 372 ( 1911 )

Mr. Presiding Justice Baker

delivered the opinion of the court.

Plaintiff was not entitled to rescind the contract of sale, because he returned only a part of the goods purchased. His return of the two coats was an offer to return them for credit, or to resell them to the defendant, and if such offer was accepted, the defendant became liable to the plaintiff for their value. The parties could," by subsequent agreement, modify the .first contract, and the finding of the court, implied from the judgment, is that the defendant, by accepting the return of the two coats and retaining them without objection for at least a month, accepted plaintiff’s offer to return them for credit, and that thereby the original contract was modified. An offer may be accepted by conduct as well as by express words of acceptance, and we cannot say that on the evidence the court might not properly find that plaintiff’s offer was accepted by the defendant.

In assessing plaintiff’s damages the court took as true the testimony offered by the defendant that the regular price of the two coats retained by the plaintiff was $65 each, $130, and that of the two coats retained $27.50 each, $55, making a total of $185, from which a lump reduction of $25 was made. This lump reduction was apportioned between the price of the coats retained and those returned, according to their respective wholesale prices, and taking such pro rata share of the reduction from the price of the coats returned, left as their value $47.50, the amount of the judgment.

We think that the judgment of the Municipal Court works out substantial justice between the parties, and the judgment will be affirmed.

:'Affirmed.