The defense here was that the contract Had been rescinded according to its provisions because the rake was not as warranted. There was serious dispute upon "the question whether the rake in any way failed to come up to the requirements of the warranty, hence no verdict could be •directed, on the ground that breach of the warranty was proven without dispute.

The court seems to have directed a verdict because he thought that the plaintiff had accepted a rescission by acts of •ownership over it after he had it in his possession. In this we think there was clear error. Of course, when the defendant denied the plaintiff admission to his premises for the purpose of trying the rake, the plaintiff was entirely justified in taking the rake to his own grounds. Probably he would not .have been justified in leaving it in the highway. This act, if •simply for the purpose of caring for the rake, cannot be called nn act of ownership which would amount to an acceptance *390of the offered rescission. The plaintiff denied that he offered the rahe for sale to any person; and the fact that he proposed to offer a part of it in evidence as showing that it was not defective cannot logically be construed as an act of ownership. The case of Cream City G. Co. v. Friedlander, 84 Wis. 53, 54 N. W. 28, is entirely misconstrued if it be thought to-hold such a doctrine. There the use which was held to be an act of ownership was a consumption of the article. The case here should have been submitted to the jury.

By the Court. — Judgment reversed and action remanded for a new trial.