ship 33, range 2 east of the third P.M., in said county, described by the metes and bounds, and containing the quantity of land above mentioned; that he occupied it at the time of the conveyance, and had occupied it for about twenty years, as a homestead, cultivating it as a vegetable garden; that he owned no other real estate in the county; that he and appellee were both present in an attorney's office when the deed was drawn, and that the scrivener made a mistake in the description by leaving out the town ship and range. Where a mutual mistake in the descrip tion is made under such circumstances, the deed may be reformed to conform to the intention of the parties (Lind say v. Davenport, 18 Ill. 375; Martind. Conv., sees. 88, 89)." We quote this decision only for the purpose of expressing a doubt as to the correctness of the pos sible implication from it that an action to reform an instrument on account of a mistake is not maintain able unless the mistake is latent. We suppose the doctrine of patent ambiguities has nothing whatever to do with the doctrine of reformation on account of mistake. That whole doctrine is very thoroughly scouted in this country, and no distinction between patent and latent ambiguities is any longer generally recognized. It may be that an action to reform a deed is not necessary when the mistake is patent, but we have no doubt that it would still be maintainable to quiet title. As for instance if the grantee's name was omitted, certainly such an action would be main tainable.
Sale to Satisfaction — Waiver. — In Palmer v. Banfield, Supreme Court of Wisconsin, November, 1893 (56 N. W. R. 1090), defendant, to whom plaintiff had sold a harvesting machine, to be paid for if it proved satisfactory, after using the machine for a day and a half decided to return it for defects, but in order to finish his harvesting, used it the next day, and then offered to return it. It was held that such additional use constituted an acceptance by which defendant waived his right to return it. The Court said : — "If the defendant did not, by his use of the machine, destroy the right to return it, if otherwise he had such right, it must be held as matter of law that he returned it, or rather that he effectually offered to return it (which amounts to the same thing) within a reasonable time after it came to his possession. So the question is not whether the offer to return was made within a reasDnable time, but whether the defendant had any right to return the machine when he attempted to do so. If the sale was absolute, as claimed by plaintiff, and there was a breach of an express
or implied warranty of the machine, and if defendant accepted the machine after testing it, and discovering its defects; or if the sale was upon condition that, if dissatis fied with the machine, the defendant might return it, and if defendant, after testing it, fully determined that it was unsatisfactory to him, and he would return it, and after wards accepted it — in either case the right to return it was lost." The Court instructed the jury, that "If defendant ascertained on Thursday or Friday that the machine did not do good work, in the one case; or, in the other case, that he then determined he would return it as unsatisfactory — if he used it on Saturday, not to test it further, but merely to complete the cutting of his grain, and without any expectation that plaintiff or his agent would come there and make the machine satis factory to him, such use was an acceptance of the machine as a compliance with the contract, and was fatal to his right to return it." We think the Court stated the law correctly, and that the testimony justified the submission to the jury of the question of acceptance.
Tornado Insurance. — In Queen Ins. Co. of Liverpool v. Hudnut Co., Appellate Court of Indiana, in November, 1893 (35 N. E. R. 397), an action upon a tornado insurance policy, the question arose upon the pleadings, whether there is any difference between a " tornado, cyclone or hurricane," and "a very high wind," and this was answered in the negative. The Court observed : — "It is alleged in the complaint that the property insured was destroyed by a cyclone or hurricane. The assurers deny that the loss was occasioned by a tornado, cyclone or hurricane, but allege that it was caused by a very high wind, forcing the boat against it. Is this not a confession that a tornado, cyclone or hurricane, caused the injury? The words 'tornado' and 'hurricane' are synonymous, and mean a violent storm, distinguished by the vehemence of the wind and its sudden changes; while the definition of a ' cyclone ' is ' a rotatory storm or whirlwind of ex tended circuit' (Webst. Unab. Diet.). It is evident, therefore, that a hurricane is a very high wind. That the hurricane itself coming in contact with the building did not alone cause the damage is not material, but, if it caused another body to come in contact and do the dam age, the hurricane would be the direct and controlling cause. The special allegations as to the cause of the injury are inconsistent with the allegations that the loss was not occasioned by a tornado, hurricane, or cyclone; hence control such general allegation."
