Levison v. Seybold Machine Co.

Daly, P. J. This action was brought for the price of a secondhand book-binding machine sold by the plaintiff to the defendant. The defense was a general denial; but the defendant was allowed on the trial to prove that the machine was not in perfect order at the time of the sale, and that an agreement was then made between the plaintiff and the defendant’s agent, Elmendorf, who made the purchase, that the defendant was to take the machine and put it in perfect order at the expense of the plaintiff, who was to1 furnish the necessary parts for that purpose; and that the terms of payment, according to Elmendorf’s testimony, were to be “ thirty days after the machine was put in perfect order by placing it in our (defendant’s) establishment, and having it tried and see if it works satisfactorily.” Evidence was given on defendant’s behalf to show that the machine could not he put in perfect order under the cost of a new one, and plaintiff’s claim was resisted on these facts. [328] The defendant established by its-own evidence that it had a duty to perform under the agreement as thus set up, namely, to put the machine in perfect order at plaintiff’s expense, ■ and to keep it in its establishment for thirty days to try it and see if it woi’lced satisfactorily' and this agreement, it was also established by defendant’s own evidence, it wholly failed to perform. "When it ’ received the machine it bought several parts for it, “ as few as possible, as long as we did not w7ant to go into expense,” and it was not put in perfect order, because the defendant “put in as few parts as necessary.” While it was in this state, and within five or six days after the defendant received it,, it was sold by the latter to a party-in Newark with the privilege of returning’it in thirty days if not satisfied. It was returned in about five weeks, and notice was given to the plaintiff. Upon this state of facts the plaintiff was clearly entitled to recover. The defendant would have been fully protected by its agreement if it had performed its part; but this it did not attempt to do. It was bound to put the machine, if possible, in perfect "condition and to keep it in its "place on -trial for thirty days and then to return it if it could not be ¡put in perfect order. Instead of doing so, it sold the machine in less than a vveek, in its alleged imperfect condition. This was a clear .waiver of all right to have the mar chine made perfect and to a -trial of. it and to the return of it, if unsatisfactory; and was an unquestionable election to accept the machine in its then condition. All- rights' against the plaintiff under the agreement were waived in order to obtain the advantage of the sale to tire Newark purchaser; and having thus elected to accept the machine and waive the benefit of the agreement, that-, agreement cannot be interposed to the plaintiff’s recovery. With respect to exceptions, appearing upon record, it should be noted ."that tire defendant was allowed to put in evidence its own written statement of its. version of the agreement contained in a written order on the plaintiff for the delivery of the machine after the sale. This method of making evidence by its own letters is not permissible. Waring v. U. S. Tel. Co., 4 Daly, 233, Judgment reversed, and new trial ordered, with costs to appellant to abide event.- McAdam and Biscmxm?, JJ., concur. Judgment reversed, and new trial ordered, with'costs to appellant to abide, event.