Power Specialty Co. v. Farrell-Check Foundry Co. , 6 Ohio Law. Abs. 635 ( 1928 )

RICHARDS, J.

Under the provisions of General Code, Section 8426, if the purchaser does any act in relation to goods purchased which is inconsistent with the ownership of the seller, that will constitute an acceptance of the goods. It seems, therefore, perfectly clear that by receiving and holding these eastings for a long period of time and subjecting them to a very high degree of heat for annealing purposes, and- in thereafter making payment for the same, the plaintiff clearly accepted the castings.

It is urged, however, • that the subsequent correspondence of the parties shows what amounts to a rescission of the acceptance. This correspondence only shows that the defendant, after the castings had been paid for, agreed with the plaintiff that if it would return the castings to the defendant it would re-anneal them, which it did and again returned them to the plaintiff. After the castings had been definitively accepted that acceptance could only be avoided by an agreement, express or implied, or a waiver or rescission of the acceptance. The correspondence utterly fails to show such a state of facts as would do away with the acceptance.

Claim is made that the matter of the acceptance should have been submitted to the jury, but in this case the entire transaction is disclosed by letters passing between the parties and the construction to be placed on this correspondence is for the court.

The trial judge committed no error in directing a verdict for the defendant.

(Williams and Lloyd, JJ., concur.)