Walsh Manufacturing Co. v. Plymouth Lumber Co.

Allen, J. The correctness of tbe ruling in tbe Superior Court depends on tbe construction of tbe written contract entered into between tbe plaintiff and tbe defendant. By its terms tbe plaintiff agreed to furnish tbe defendant a complete' dry-kiln apparatus for tbe sum of $1,725, of wbicb $700 was to be paid in cash, and it guaranteed its quality and workmanship, and it was provided therein that, upon failure of tbe kiln to do tbe work as guaranteed, tbe defendant should-notify tbe plaintiff to that effect, and give it the opportunity to correct any defects, and if after such correction tbe kiln still failed to do tbe work as guaranteed, tbe defendant agreed to reload tbe material furnished and ship to tbe plaintiff. It was further stipulated in tbe contract that, upon return of tbe material, tbe plaintiff would refund all money covering freight charges and cash payments paid by tbe defendant, and that further responsibility on tbe part of tbe plaintiff should then cease'. Tbe defendant did not give tbe plaintiff tbe opportunity to correct defects, if they existed, nor did it offer to return tbe material. Tbe contract is fair and reasonable on its face, and, in tbe absence of fraud,’ wbicb is not alleged, must be enforced. It belongs to tbe class of contracts called “contracts of sale or return,” of wbicb it is said in Parson on Contracts (5th Ed.), vol. 1, p. 539-: “In these tbe property in tbe goods passes to tbe purchaser, subject to an option in him to return them within a fixed time or a reasonable time; and if be fails to exercise this option by so returning them, tbe sale becomes absolute, and tbe price of tbe goods may be recovered in an action for goods sold and delivered”; and in Cyo., vol. 35, p. 237: “Where tbe contract jnovides for a return of tbe goods if not satisfactory, tbe buyer cannot relieve himself from liability for tbe price, unless be returns or offers to return them, and tbe offer to return must be unconditional.” *511 Tbis principle, as applicable to the facts in this case, is approved in Main v. Griffin, 141 N. C., 43; Main v. Field, 144 N. C., 307; and Piano Co. v. Kennedy, 152 N. C., 197, in which last cited case the Court says: “We have recognized the principle that there can be no implied warranty of quality in the sale of personal property where there is an express warranty, and that where a party sets up and relies upon a written warranty he is bound by its terms and must comply with them. 30 Am. and Eng., p. 199; Main v. Griffin, 141 N. C., 43. We recognize the further principle, applied by us in that case, that a failure by the purchaser ter comply with the conditions of the warranty is fatal to a recovery for breach of the warranty in an action on it, or where, as in this case, damages for the breach are pleaded as a counterclaim in an action by the seller for the purchase money.” The defendant having failed to return the material, and not having offered to do so, and having failed to perform other stipulations contained in the contract, was not entitled to re- , cover on his counterclaim, and on the admitted facts judgment was properly rendered in favor of the plaintiff for the contract price. No error.