Ross Attley Lumber Co. v. Columbia Hardwood Lumber Co. , 200 Ill. App. 65 ( 1916 )

Mr. Justice McGoorty

delivered the opinion of the court.

3. Sales, § 329^*—when evidence insufficient to show acceptance. In an action to recover the contract price of certain goods, evidence examined and held insufficient to show an acceptance of the goods by the buyer. 4. Sales, § 279*—when conduct of buyer insufficient to show waiver of implied warranty of quality. In an action to recover the contract price of goods sold, evidence that the buyer after inspecting the goods and rejecting them refused the request of the seller to have an inspection of the goods made by a third person, but continued to retain possession at the latter’s request, is not sufficient to show such acceptance as would waive an implied warranty as to quality of the goods. 5. Sales, § 330*—lohen instruction erroneous. In an action to recover the contract price of goods, a requested instruction of the seller that if the jury believed from the evidence that the buyer accepted the goods it would be liable under its contract, should be refused where it excludes the element of implied warranty arising from the contract. 6. Sales, § 330*—when instruction erroneous. In an action to recover the contract price of goods, an instruction which proceeds upon the theory that if the goods were not according to the contract but the buyer accepted them, the implied warranty as to quality was thereby waived, is erroneous. 7. Sales, § 330*—when instruction erroneous. In an action to recover the contract price of goods, an instruction which erroneously states what will constitute a constructive acceptance and invades the province of the jury by assuming such acceptance should be refused.