This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Acceptance, in this sense, includes the physical act of taking possession of the goods and also the intention of retaining them.1 Since intention to waive breach is an essential element of waiver, the mere fact of possession of the property tendered by the adversary party in performance of the contract is not conclusively an acceptance so as to waive breach.2 'Whether physical receipt of property which is delivered under a contract is a waiver of complete performance, is ordinarily a question of fact depending on the actual intention of the parties.3 If the purchaser has a right to accept that part of the goods delivered which conforms to the contract, and to reject the rest, his acceptance of a part of the goods is not a waiver of defects in the part which he has thus rejected.4 Inspection by an agent of the buyer at the seller's factory has been held not to be a waiver of defects if such inspector is appointed voluntarily by the buyer for the accommodation of the seller.5 The fact that the promisee takes possession of the property tendered in performance, for the purpose of testing it, and seeing whether it complies with the terms of the contract or not, does not amount to an acceptance.6 If A digs a well for B, agreeing that it shall furnish water for certain purposes, B's act in using such well to test its capacity does not amount to an acceptance thereof so as to waive breach.7 Retaining an article in reliance upon the promise of the seller to remedy defects, is not a waiver of such defects.8
11 Cream City Glass Co. v. Fried-lander, 84 Wis. 63, 36 Am. St. Rep. 805, 21 L. R. A. 135, 54 N. W. 28.
1 Omaha Beverage Co. v. Temp Brew Co., - la. -, 171 N. W. 704.
2 Iowa.. Omaha Beverage Co. v. Temp Brew Co., - la. -, 171 N. W. 704.
Michigan. Kronman v. Gardella, 100 Mich. 645, 157 N. W. 377.
North Carolina, Hall Furniture Co. v. Crane Mfg. Co., 160 N. Car. 41, L. R. A. 1015E, 428, 85 S. E. 35.
Ohio. Rheinstrom v. Steiner, 69 O. S. 452, 60 N. E. 745.
Oklahoma. Hart-Parr Co. v. Duncan, - Okla. -, 4 A. L. B. 1434, 181 Pac. 288.
Bhode Island. Pennington v. How-land, 21 B. I. 65, 70 Am. St. R\ep. 774, 41 Atl. 801.
3 Campion v. Marston, 00 Me. 410, 60 Atl. 548.
4 Stearns Salt & Lumber Co. v. Den-nis Lumber Co., 188 Mich. 700, 2A.L R. 638, 154 N. W. 01.
5 First National Bank v. Carroll, 35 Mont. 302, 88 Pac. 1012.
6 Wind v. Her, 03 la. 316, 27 L. R. A. 210, 61 N. W. 1001.
7Genni v. Hahn, 82 Wis. 90, 51 N. W. 1006.
8 Roper v. Wells, 182 la. 237, 165 N. W. 385; United Iron Works v. Raths-keller Co., 04 Wash. 67, L. R. A. 1917ft 445, 161 Pac. 1197.
The act of the buyer in reselling goods before he has an opportunity to inspect them does not operate as a waiver of defects therein.9 Payment of a draft which is necessary to enable the buyer to get the bill of lading is not a waiver of unknown defects.10 If, however, certain defects are apparent, and known to the promisee, his act in making use of part of such property amounts to an acceptance of the entire lot offered and such defects are thereby waived.11 Thus if A, who has agreed to give certain securities to B to secure a debt of B's, tenders B a note in place of such security, and on B's refusal to take it A throws it on the table in front of B and goes away without it, such facts do not constitute an acceptance by B.12