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Toshiba Machine Co.11/10/2005
non-conformity would be seasonably cured. Id. §§ 2.607(b), 2.608(a)(1) (Vernon 1994). Where a buyer accepts goods without knowledge of a non-conformity, the buyer may revoke its acceptance if acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller's assurances. Id. § 2.608(a)(2).
Rejection of goods must occur within a reasonable time after their delivery. Id. § 2.602(a) (Vernon 1994). Likewise, revocation of acceptance must occur a reasonable time after the buyer discovers the grounds for revocation. Id. § 2.608(b). Whether rejection or revocation occurred within a reasonable time depends on the facts of a particular case. Id. § 1.205(a) (Vernon Supp. 2004-05) (providing that " hether a time for taking an action required by this title is reasonable depends on the nature, purpose, and circumstances of the action."); Purnell v. Guar. Bank, 624 S.W.2d 357, 359 (Tex. App.--Dallas 1981, writ ref'd n.r.e.) (holding that whether thirty-month delay precluded revocation of acceptance of defective pleasure boat was a fact question); Don's Marine, Inc. v. Haldeman, 557 S.W.2d 826, 829 (Tex. App.--Corpus Christi 1977, writ ref'd n.r.e.).
After rejection or revocation of acceptance, any exercise of ownership by the buyer with respect to the goods is wrongful as against the seller. TEX. BUS. & COM. CODE ANN. § 2.602(b)(1).
As noted above, the gist of Toshiba's argument is that SPM's extensive use of the BMC machines--17,000 hours of use over four years--constitutes acceptance and precludes revocation of acceptance as a matter of law. According to Toshiba, use equals irrevocable acceptance because it is an act inconsistent with Toshiba's ownership under § 2.606(a)(3) and a wrongful exercise of ownership under § 2.602(b)(1). Toshiba cites several Texas and foreign cases to support its argument. Generally, these cases stand for the proposition that a buyer who exercises dominion and control over nonconforming goods accepts those goods. See, e.g., Bacchus Indus., Inc. v. Frontier Mech. Contractors, 36 S.W.3d 579, 585 (Tex. App.--El Paso 2000, no pet.) (holding that buyer who made substantial repairs and modifications to air conditioning units accepted them as a matter of law); Danjee, Inc. v. Addressograph Multigraph Corp., 262 S.E.2d 665, 669-70 (N.C. Ct. App. 1980) (stating in dicta that revocation not available to buyer who, with full knowledge of defects, used printing presses for a "long period of time" and never attempted to reject them or revoke acceptance); Explorers Motor Home Corp. v. Aldridge, 541 S.W.2d 851, 853-54 (Tex. App.--Beaumont 1976, writ ref'd n.r.e.) (holding that buyers who traveled 14,000 miles in motor home over two years did not effectively reject the motor home); Bowen v. Young, 507 S.W.2d 600, 603-04 (Tex. App.--El Paso 1974, no writ) (holding that buyer who moved into nonconforming mobile home and converted its heater from electric to gas accepted the home as a matter of law).
But the cases cited by Toshiba do not give a complete answer to the question of whether "use equals acceptance" under the UCC. Most courts have indicated that whether the buyer's continued use of goods undoes a purported rejection or revocation of acceptance depends upon whether the use was reasonable. ANDERSON ON THE UNIFORM COMMERCIAL CODE, § 2-608:281 (2004); WILLISTON ON CONTRACTS, §§ 40:19, 40:30 (4th ed.). What constitutes reasonable use is a question of fact to be decided under the circumstances of each case, but courts generally hold that using goods during the time when the seller is promising or trying unsuccessfully to cure the nonconformity will not adversely affect the buyer's rights. WILLISTON ON CONTRACTS, § 40:30; see
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