Opinion
Decided January 31, 1928.
Appeal from Harlan Circuit Court.
ASHER SHEHAN for appellant.
LYTTLE MORGAN for appellee.
Reversing.
In April, 1925, the appellee entered into a contract with the appellant whereby he purchased from the appellant an "L. Super Safe Account System and Supplies." The concern, including supplies and equipment, weighed about 900 pounds. The price was $663. For brevity we will refer to the contrivance as a safe, as that is what it is called in the evidence. The safe was shipped to appellee in May, and arrived the latter part of that month or the first of June. He turned in as a part of the purchase price an old safe which he had at the price of $100, and paid $43 in cash, thus leaving a balance of $500, for which he executed his notes. He failed to pay the notes, and suit was instituted against him. He answered, admitting the signing of the contract but alleged that his signature thereto was obtained by fraud on the part of the agent of appellant. The alleged fraud consisted of representations by the agent that there would be a fire proof compartment in the safe in which appellee could keep his books relating to his merchantile business, and that the agent further represented that there would be space in the safe for the books and also to keep jewelry and pistols.
Appellee admits that the safe was delivered to him, but, alleging that it did not contain the compartments for his books, jewelry, and pistols, he refused to pay the note, and by way of counterclaim he alleged that he was entitled to recover the $163 which he had paid. He testified as to the representations made by the agent, and supported the allegations in his answer, and he introduced witnesses who corroborated him in his statements. He made the discovery that the safe did not have such a compartment, so he claims, upon the arrival of the safe and after it had been installed. The appellant sent a man to install the safe in his store. Appellee signed a receipt showing that it had been properly installed, although he claims that he was not present at the time the installation took place.
The law is well settled in this state that it is the duty of a buyer to inspect goods which he has purchased upon delivery, and, if there are any defects which are apparent and he retains the goods after discovering the defect without notifying the seller of the defect, he cannot defend an action for the purchase price upon the grounds that the goods are not as represented. An acceptance of the goods after an inspection, or a reasonable opportunity to inspect, is a waiver of any breach of warranty in the contract of sale. Yeiser v. Russell Co., 83 S.W. 574, 26 Ky. Law Rep. 1151; Sprout, Waldron Co. v. Hunter, 98 S.W. 1006, 30 Ky. Law Rep. 380; McCoy v. Field Grocery Co., 142 Ky. 812, 135 S.W. 319; J. I. Case Threshing Machine Co. v. Patterson, 137 Ky. 180, 125 S.W. 287; Iowa Gas Electric Co. v. Wallins Creek Coal Co., 222 Ky. 635, 1 S.W.2d ___.
The evidence in this case does not show there was any warranty, but, on the other hand, the written contract shows that the goods were not warranted, and also shows that the representative of the company who made the sale had no authority to vary the terms of the written contract. But, assuming that there was a warranty, it is only necessary to examine the proof to determine that the goods were accepted by the appellee without complaint. On July 21, 1925, he addressed a communication to appellant, which reads as follows:
"I am writing to ask that I may have a little more time before making you another payment. I am contemplating going out of business at once, in fact I have already sold my property and am trying to place this register with some of my friends to finish paying for it if it will be satisfactory with you. I have the money to make the payments, but I thought it would be better if I could trade it on my part. Let me hear from you in regard to the matter, as I want to make everything satisfactory with you."
On August 20, 1925, appellee wrote appellant another letter, in which he said:
"I have went out of the merchandise business and have decided to let you have the super safe register back as I have no use for it now. Please advise me how to ship and where."
In response to this letter, appellant advised him that the safe would not be accepted by it, and called upon him to pay the installments upon his note then due.
On October 17, 1925, appellee wrote appellant another letter, in which he said:
"Find enclosed B. of L. for the register I am returning. I just am not able to pay for it. I had to sell out to pay off the bills against my store. Am sorry that I cannot see any way to pay for it. I am going to work by the day next week, so I don't know anything else to do only let you have it back."
He shipped the safe back some time the latter part of October, but appellant refused to accept it from the railroad company. He was advised by appellant, in response to his last letter, that it would not accept the safe.
This record shows that appellee ordered the safe and signed a written contract therefor. He accepted it and retained it for several months. He cannot now escape a judgment against him for the price which he agreed to pay. The trial court should have given a peremptory instruction directing the jury to return a verdict in favor of appellant for the amount of the notes, and, if the evidence is the same on another trial, the court will so instruct the jury.
Judgment reversed and cause remanded, for proceedings consistent with this opinion.