The defendant purchased the equipment in question on October 28, 1935, and obtained delivery and installation of it November 13, 1935. The total consideration of the sale was $1,023.32. This entire amount was payable in monthly installments beginning December 15, 1935, of which thirty-five were for $28.44 each and one was for $27.92.
This suit for the enforced collection of defendant's obligation was instituted on May 25, 1936. No part of the purchase price has ever been paid, notwithstanding numerous demands therefor having been made.
According to my appreciation of the evidence in the record, defendant used the equipment continuously from the date of the installation until the filing of suit, a period of more than six months, and no complaint was made to plaintiff during that time regarding its failure to properly perform the work for which it was sold. Furthermore, he made no offer to return it. *Page 896 On the contrary, defendant's milk products were daily transported to the city of Shreveport and no loss was sustained thereto because of insufficient cooling. The records of plaintiff reveal that defendant requested the repairing of a crank and pulley, which became broken, and the welding of the pump that had frozen during cold weather on account of defendant's failure to drain it. These were repairs such as all machinery requires at various times depending on circumstances, and were not made necessary by any inherent defect in the equipment. They were performed as requested, and without charge to defendant.
It is my opinion that defendant's use of the refrigeration unit for more than six months, without complaining of its failure to properly function and without offering to return it, precludes his rescinding the sale. Its operation for a time sufficient to afford a discovery of the asserted defective condition was permissible; but when this condition became apparent, a duty devolved upon him to inform the seller of the imperfections and to offer to restore the status quo.
When sued for the purchase price of certain root beer equipment, the defendant in the case of Goode-Cage Drug Co. v. Ives, 16 La.App. 383, 133 So. 813, 815, sought to rescind the sale on the ground that such property was not suitable for the purpose for which it was sold. In denying the relief requested, this court said:
"The defendant has not offered to restore the status quo, and could not have executed the offer if he had made it. He has used the equipment for a whole season and consumed a considerable portion of the root beer syrup purchased. We think the defendant justified in using the equipment and the goods for only such time as was necessary to discover the defect complained of, which, from the date of delivery, could not have reasonably exceeded two weeks. If he, after such time had elapsed, had pointed out the defects or vices of the equipment and offered to return the goods, we are of the opinion that he would be entitled to have the sale rescinded, provided the defects were of such nature as to render the articles unfit for the purpose for which they were purchased, but the continued use of the articles sold throughout the root beer drinking season bars him from such recovery.
"`Where the article is one which must be used before its quality can be ascertained, this not being apparent from examination, it is the right of the buyer to make use of the property or such portion thereof as may be actually necessary to determine the quality, and such use does not affect the right to reject for failure to comply with the contract in that respect. On the other hand, if, after knowledge of the breach of warranty as to quality, the buyer continues to use and consume the goods received by him, but not in order to make a proper test as to quality, he waives his right to rescind and return the amount unconsumed.' R.C.L. vol. 24, Sales, § 575."
This minority opinion also finds support in the case of Sidney Machinery Tool Co. v. Blanchard, 186 La. 476, 172 So. 532.
The instant case may be differentiated from that of Hemenway, Inc. v. Williamson, 173 So. 781, recently decided by this court. The evidence in that litigation conclusively showed that the purchaser repeatedly complained of the defective equipment and that the seller was never able to cause it to function properly.
For the foregoing reasons, I am compelled to respectfully dissent from the majority opinion. *Page 914