M. Hommel Wine Co. v. Netter

Mr. Presiding Justice Gridley

delivered the opinion of the court.

There is no dispute as to the quantity of the wine received by defendant or as to the total purchase price thereof. Ño point is made as to the verdict being excessive in amount on the ground that interest on said purchase price was included in the verdict. The main contention of counsel for defendant is that the trial court erred in directing a verdict in favor of plaintiff in any amount.

After due consideration of all the evidence we are of the opinion that the court’s action in directing a verdict in favor of the plaintiff was proper. We think that the evidence clearly shows that the wine, after its arrival in Chicago, was inspected by the defendant and with full knowledge of its condition was accepted by him. While he at first notified plaintiff that he would not accept the wine because he claimed that the same was not like the samples- previously submitted to him, yet he afterwards refused to return the wine to plaintiff when requested so to do, and took the wine from the dock and stored it in a warehouse, and afterwards refilled some of the barrels and also sold a large portion of the wine. “Any act done by the buyer of goods tendered in fulfillment of a contract of sale, which he would have no right to do if he were not the owner, constitutes, of itself, an acceptance of the goods.” (Wolf Co. v. Monarch Refrigerating Co., 252 Ill. 491, 502.) In Barker v. Turnbull, 51 Ill. App. 226, 229, quoted with approval in McLeod v. Andreius & Johnson Co., 116 Ill. App. 646, 649, it is said: “This court held in Eureka Cast Steel Co. v. Morden Frog Works, 23 Ill. App. 591, that, in the absence of fraud or latent defects, the acceptance of an article sold upon an executory contract after an opportunity to examine it, amounted to an agreement that the article conformed to the contract and was satisfactory, and barred all claim for compensation for defects existing in the article. Where there has been an acceptance after an opportunity to inspect the goods delivered under an executory contract, damages because of the inferior quality of the accepted goods cannot be recouped in the absence of proof of fraud, or express warranty by the vendor, or of latent defects incapable of discovery on inspection.” In the instant case the evidence clearly discloses that the wine was sold by samples, upon which samples the defendant relied, that there was no express warranty upon which defendant relied, that the defendant had ample opportunity to inspect the wine after it was received, that there were no latent defects in the wine incapable of discovery on inspection, and that no fraud was practiced by plaintiff on defendant. In the ease of America Theatre Co. v. Siegel, Cooper & Co., 221 Ill. 145, the defendant gave a written order to plaintiff for the delivery to defendant at a price named of a certain number of opera chairs, “same as sample shown” and “backs to be upholstered in red plush, same quality as sample submitted.” Plaintiff delivered the chairs and subsequently brought suit against defendant for the purchase price. On the trial at the close of all the evidence the court instructed the jury to return a verdict in favor of plaintiff for the full purchase price of the chairs, upon which verdict judgment was entered. It was contended that this action was erroneous in that plaintiff had failed to prove that the chairs delivered complied with the description contained in the order and that the chairs were of the same quality and description as the sample exhibited to defendant. In affirming the judgment our Supreme Court said (p. 147):

. “The evidence offered by appellee showed that the chairs which were delivered were ‘K. D.’ opera chairs, with iron frames and upholstered backs, and that appellant received and retained them and had them set up in its opera house for use. With this proof in the record it was not necessary for appellee to prove that the chairs exactly corresponded with the sample or with the description contained in the contract. The law does not permit a person to receive goods under a contract, appropriate them to his own use, and. then defeat an action for the purchase price on the ground that the goods were not of the exact quality or description called for by the contract. His remedy, in the absence of a warranty, is to refuse to accept the goods when delivered, or to return them within a reasonable time after the departure from the terms of the contract is discovered.”

It is also contended that the trial court, in connection with defendant’s claim, of set-off or recoupment, erred in refusing to admit in evidence defendant’s offered testimony relative to his alleged loss of profits. Under the facts of this case and for reasons above stated we do not think that the court erred. Furthermore, the loss by a purchaser of goods of anticipated profits from a resale of the goods because of defects therein is not the measure of damages unless the seller knew that the buyer had an existing contract to resell at an advanced price, and that the purchase was made to fulfil such contract. (Rhea Implement Co. v. Racine Co., 89 Ill. App. 463.) There was no evidence that the defendant, at the time he purchased the wine, had an existing contract with any one to resell the wine at an advanced price, and there was no evidence introduced or offered that defendant had lost any actual profits, as distinguished from probable or speculative profits.

The judgment of the Municipal Court is affirmed.

Affirmed.