Stillwell, Bierce & Smith Vaile Co. v. Biloxi Canning Co.

Citations

• 78 Miss. 779

Syllabus

<p>1. Sales. Machinery. Receipt. Acceptance.</p> <p>When goods are sent to a buyer under a contract of sale, he is not precluded from objecting to them on their receipt, but receipt will be acceptance if the right of rejection is not exercised in a reasonable time, or if any act be done by the buyer which he would have no rig-ht to do unless he were the owner of the goods.</p> <p>2. Same. Use of goods.</p> <p>The use of machinery by the buyer, after testing it, is an acceptance, although he notified the seller of its defects, informing him that nothing- more would be paid on the purchase money and that it would be held as security for what had already been paid.</p> <p>3. Same. Purchase money. Recoupment. Warranty.</p> <p>A buyer, after accepting machinery with a warranty of its capacity, cannot wholly escape liability for the purchase money by showing a breach of the warranty. Where the warranty survives the acceptance, he may recoup his damages, and it does so survive if the contract of sale do not provide otherwise.</p> <p>4. Same. Burden of proof.</p> <p>The burden of proof is on the buyer who accepts machinery, notwithstanding a breach of warranty, to show the breach and the extent of his damages because thereof.</p>