In re GEORGE M. HILL CO., 123 F. 866

JENKINS, Circuit Judge (after stating the facts as above). The contract of sale was executory, and was conditioned that the machine should run satisfactorily, and that title should not pass until payment. The first question presented is whether there was an acceptance by the buyer of the

article furnished. Its mere receipt did not constitute acceptance. Benjamin on Sales (6th Am. Ed.) § 703. Acceptance comprehends both physical receipt and mental assent. The vendee agreed to buy and to pay for the feeder “when machine is running satisfactorily.” The bankrupt had the right of inspection to determine if the machine was of the kind and quality ordered, and of reasonable opportunity to determine whether it worked satisfactorily. If the machine did not work satisfactorily to the buyer, he need not accept it.

Some authorities hold to the doctrine that with respect to such contracts the courts may not inquire whether the dissatisfaction of the vendee was based upon reasonable ground and was rested in good faith. Probably the correct rule is that, if the purchaser be in fact satisfied, but fraudulently, and in bad faith, arbitrarily, or capriciously declares he is not satisfied, and the contract has in fact been performed by the vendor, the purchaser is bound to accept. Silsby Manufacturing Company v. Town of Chico (C. C.) 24 Fed. 893. The subject is well considered and the authorities assembled by Mr.

Justice Brown in Campbell Printing Press Co. v. Thorp (C. C.) 36 Fed. 414,1 L. R. A. 645. It may be that in an action brought upon the contract a jury, upon the evidence before us, would find, and would be justified in finding, that the machine in fact worked satisfactorily to the vendee, and that the objection thereto and the refusal to accept were in bad faith, and were pretentious merely; but the fact remains that the bankrupt did refuse from the first, and continued to refuse, to accept the machine.

The question is not whether the vendee was justified in its refusal to accept, but whether it did in fact refuse. Rightfully or wrongfully, the bankrupt did insist that the Dexter. Folder Company should furnish another suited to the enlarged folder. The bankrupt, now that the vendor seeks to take back the machine, may not be heard to say that it accepted what it constantly declared it would not accept. It may not be permitted now to take advantage of its own bad faith or fraud.

Nor can the receiver of the bankrupt be heard to say that the refusal to accept was arbitrary or capricious, fraudulent and in bad faith, for he stands in this respect in the shoes of the bankrupt, whatever may be his right, with respect to an

article delivered and accepted under a conditional sale. The bankrupt having refused to accept, the receiver has no higher right than the bankrupt, and cannot be allowed to assert fraud and bad faith of the bankrupt to work out an acceptance, without which no title passed to the bankrupt. The delivery of the Goldsmith, feeder in part payment was concurrent with the receipt by the vendee of the substituted feeder in question, and before opportunity to test the working of the new feeder.

Neither that fact, nor its subsequent sale as old iron by the vendor, affects the question of acceptance by the vendee, and is without controlling force. This conclusion renders it unnecessary to consider the further question whether—because under the law of the state of Illinois a sale under contract conditioned that no title should pass until payment, the property being delivered and accepted, is constructively fraudulent as to creditors who come armed with execution or attachment (Ketchum. v. Watson, 24 Ill. 591; McCormick v. Hadden, 37 Ill. 370; Murch v. Wright, 46 Ill. 487, 95 Am. Dec. 455; Chickering v.

Bastress, 130 Ill. 206, 22 N. E. 542, 17 Am. St. Rep. 309; Peoria Manufacturing Company v. Lyons, 153 Ill. 435, 38 N. E. 661; Hervey v. Rhode Island Locomotive Works, 93 U. S. 664, 672, 23 L. Ed. 1003; Dooley v. Pease, 180 U. S. 126, 21 Sup. Ct. 329, 45 L. Ed. 457), the rule being otherwise in most of the states of the Union (Harkness v. Russell, 118 U. S. 663, 7 Sup. Ct. 51, 30 L. Ed. 285)—general creditors claiming through the receiver or trustee in bankruptcy stand in the shoes of execution or attachment creditors.

The decree or order appealed from is reversed, and the cause is remanded, with a direction to grant the prayer of the petition.