Huyett & Smith Manufacturing Co. v. Gray

Claek, J.: The purchaser of the machinery, by the terms of the contract, had a reasonable time after he received it to make known its defects. But he seems to have kept and used, the machinery without complaint for some length of time, indeed until the plaintiff sought to recover the property under the contract because of failure to pay for it. If the objection was not made known within reasonable time, and the purchaser continued to use the machinery without objection, this was a ratification. If the plaintiff then proceeded *92 to recover th > prop u’ty, it was entitled t) claim the forfeiture provided for in section 5 of the contract, unless for any reason that should be relieved against in equity, and it certainly would have been entitled at East to the -freight b -th ways and to show the damage to and deterioration of the property. If the objection was made known to the seller within reasonable time so as to avoid the s ile, still, if there was any damage, caused by the purchaser, other than the deterioration from attempting to'use the machinery in a proper way, it could be shown. The burden was on the defendant to show that the presumption of liability for the purchase-money from receipt and use of the machinery was rebutted by objection made within a reasonable time. Upon the state of facts found it was error to rfject the testimony offered by the plaintiff that “ the property had been greatly endangered by the defendant, and greatly deteriorated by its constant use by him ever since its delivery to him.” 1. Where there is a breach of warranty of quality, the vendee may (1) refuse to accept the goods; (3) if lie has paid the purchase-money, return the goods and recover the money paid, or (3) plead the breach of warranty in diminution of the price. 3. Special damages for breach of warranty must be specially pleaded, and it must be shown that they are in contemplation of the parties; they are rarely allowed except in cases of fraud. It may be that the purchaser within a reasonable time notified to the seller the objections to the machinery and offered to return it. But this is neither pleaded nor shown in evidence. Nor is there anything in the reply which (as defendant contends) cures the failure to allege in the complaint that notice of the defect in the machinery was given within a reasonable time. Error. DEPENDANT’S appeal.