Frick Co. v. Boles

AlleN, J. There was error in submitting tbe fifth issue to tbe jury, because there is neither- allegation nor proof that tbe time provided in tbe contract was not a reasonable time for tbe examination of tbe machinery purchased, and tbe question as to whether five days is a reasonable time in contracts like tbe one before us does not arise. On tbe contrary, tbe evidence introduced by tbe defendant shows that be knew of tbe defects of which be now complains, if they existed, on tbe first day tbe machinery was operated, and that instead of its condition improving, it grew worse. Tbe defendant himself testified “that Dellinger, tbe agent, was present when tbe machinery was set up; that tbe machine cut tbe grain of tbe wheat as it threshed, and defendant told him about it; Dellinger said be would remedy that; be took out one of tbe concaves, and after this was *657 dome be discovered that tbe wheat was left in tbe straw and it would go out of tbe gin with tbe straw and chaff to some extent; tbat be ran tbe machine, but it got worse; tbe engine would not pump; it was bard to make it steam; tbe center crank was always bending; tbe pump would not force water into tbe boiler”; and tbe brother of tbe defendant testified “tbat tbe machine did not do good work at tbe start; tbat be beard bis brother tell Dellinger tbat it did not work, and be saw him take out tbe concave and tell him tbat it would get better; but in tbe opinion of tbe witness, it got worse, and never threshed more than half of tbe wheat a machine should thresh; it would get hot and stop, and a good deal of time was wasted; it didn’t have tbe power; tbat be threshed bis wheat tbe second season and be could see no difference; it wasted tbe wheat.” If, therefore, tbe defendant knew within tbe five days provided for in tbe contract tbat tbe machinery did not fulfill tbe terms of tbe warranty of tbe plaintiff, it became bis duty to notify tbe plaintiff, as be bad agreed to do, in order tbat tbe plaintiff might make repairs or supply him with new machinery, and upon failure of tbe plaintiff to perform this duty, be agreed tbat be would return tbe machinery. Tbe jury has found without objection upon tbe part of the defendant tbat be failed to give this notice, and if so be cannot under the authorities have relief upon bis alleged breach of warranty. Moore v. Piercy, 46 N. C., 131; Main v. Field, 144 N. C., 307; Piano Co. v. Kennedy, 152 N. C., 197; Robinson v. Huffstetler, 165 N. C., 459; Oltman v. Williams, 167 N. C., 314. In Robinson v. Huffstetler, supra, tbe Court, after citing with approval 35 Cyc., 437, and Mfg. Co. v. Lumber Co., 159 N. C., 510, says: “It seems, therefore, to be settled tbat when there is an express warranty in tbe sale or exchange of personal property, and it is a part of tbe contract of sale tbat tbe property is to be returned within a specified time, if not as warranted to be, that tbe complaining party can have no redress by reason of tbe warranty, in tbe absence of fraud, without offering to return tbe property within tbe time named”; and in tbe later case of Oltman v. Williams, “It is well settled tbat a party relying upon and setting up a written warranty of quality in tbe sale of personal property is bound by tbe terms of tbat warranty and must comply with them in order to be entitled to redress in an action to recover tbe purchase price. Bank v. Walser, 162 N. C., 54; Main v. Griffin, 141 N. C., 43; Robinson v. Huffstetler, 165 N. C., 459.” Not only did tbe defendant fail to give notice to tbe plaintiff, but it appears from tbe record tbat fifty-seven letters passed between them, beginning in November, 1908, and ending in September, 1911, and tbat in no letter written by tbe defendant did be make complaint that tbe machinery did not satisfy tbe terms of the warranty. 'He repeatedly re *658 quested indulgence upon bis notes, made frequent promises to pay, and represented tbe machinery to be in good condition. He wrote tbe plaintiff on 25 November, 1908: “I will certainly pay you if you can wait on me; if not, you will bave to take tbe machine. It is in good condition.” On 9 January, .1909 : “I hope tbe company will wait on me a while longer. Tbe machine is in good shape and was not used but a short time.” On 22 January, 1909 : “I am not in shape to pay out now, but if you will give me a chance I will certainly pay you; and if you can’t wait, here is the machine in good shape, well cared for, nothing broken in any way.” On 1 November, 1909 : “Do' the best you can for me, for I am in a very close place for money. The machine is in good condition, well cared for.” On 3 January, 1910: “Hope you can wait on me a little while longer. The machine is in nice shape, in good condition.” It also appears from the evidence of the defendant that the thresher was burned in 1910 and that he collected the insurance money of $150, and he only claims to have paid $100 of the insurance to the plaintiff, and that since the commencement of this action he sold the engine and recommended it “good of its kind” to the purchaser. If, therefore, the machinery did not satisfy the terms of the warranty, and the defendant knew of the defects within the five days stipulated in the contract, and if he failed to give notice to the plaintiff in order that it might make such changes as were necessary, and if the contract required the defendant to return the machinery if such changes were not made, the defendant cannot now, after retaining the machinery three or four years, without complaint, rely upon a breach of the warranty; and it was therefore error to submit the sixth and seventh issues to the jury and the plaintiff was entitled to judgment upon the first, second, third, and fourth issues. Keversed.