Fay & Eagan Co. v. Dudley & Sons

Cobb, P. J. (After stating the facts.) 1. The contract was in writing. There is no claim that the contract, as it appears in the writing, was the result of any fraud, accident, or mistake. It was free from ambiguity. The parties must therefore stapd or fall by the terms of that instrument. It was an agreement to sell a machine of a certain description and a certain character. In a contract for the sale of goods, words of description of the subject-matter of the sale are ordinarily to be regarded as simply a warranty that the goods delivered .shall be of . the character described in the contract. Henderson Elevator Co. v. North Ga. Mill Co., 126 Ga. 279 (55 S. E. 50.) Hence there was a warranty, on the part of the sellers, that the machine delivered would be of the kind and character described in the contract. There was nothing in the contract warranting that the machine would do a particular work, or work of a given character. The mere silence of the contract on this question would not be sufficient to open the door to parol evidence. In Seitz v. Brewers’ Refrigerating Mach. Co., 141 U. S. 510 (12 Sup. Ct. 46, 35 L. ed. 837), it was held that where a known, described, and definite article is ordered of a manufacturer, although it be stated by the purchaser to be required for a particular purpose, yet if the known, described, and definite thing be actually supplied, there is no warranty that it will answer the particular purpose intended by the buyer. In tfyat case the contract was an agreement to sell "a No. 2 size refrigerating machine, as constructed by the said party of the first part.” The defendant attempted to set up, as a defense, that prior to the execution of the contract the agent of the plaintiff had represented that the machine would cool 150,000 cubic feet to 40 degrees Fahrenheit; and it was held that this could not be considered, for the reason that it violated the terms of the written contract, that the contract described the machine, that [318] there was nothing in the description in reference to the work it would do, and that that which was attempted to be proved as a representation of the plaintiff was itself a new description of the machine and in conflict with the terms of the instrument. In the present case the contract being for the sale and delivery, of a machine manufactured by the plaintiff and described in the contract, if a machine of that character was delivered, the plaintiff complied with its part of the contract and the defendants would be compelled to perform their part. It was therefore error to admit in evidence the representations as to the work that would be done by the machine, made by the agent at the time that negotiations were pending and before the written contract was entered into. 2. The contract provided that the retention of the property, “ after thirty days from date of shipment, shall constitute a trial and acceptance, be a conclusive admission of the truth of all representations made by or for the consignor, and void all contracts of warranty express or implied.” There was no provision in the contract that notice from the defendants to the plaintiff that they were dissatisfied with the machine and that the machine did not comply with the terms of the contract should interfere with the distinct agreement above referred to, resulting from the mere retention of the machine. It may be that this was a very unreasonable stipulation, but the parties have made their own contract and they must abide by its terms. If the defendant retained the machine during the time referred to in the above stipulation in the contract, such retention amounted to an admission that the representations made by or for the plaintiff were true and avoided all warranties. Unreasonable stipulations of a similar character to the one now under consideration appear in numerous contracts; but it has been uniformly held that the parties must abide by the terms of their contract in the absence óf fraud, accident, or mistake. See, in this connection, International Harvester Co. v. Dillon, 126 Ga. 672 (55 S. E. 1034); McCormick Harvesting Machine Co. v. Allison, 116 Ga. 445 (42 S. E. 778). 3. But it is said, that, even though the defendants would not be allowed to enter any of their defenses to the original contract, there has been a new agreement, and that the plaintiff has not complied with the terms of the new agreement, and that the damages resulting to the defendants from its failure so to comply are sub [319] ject to be set off against the plaintiff’s demand for the balance due on the purchase-money of the machine. Under this alleged new agreement the defendants were to return the machine to the plaintiff, who was to make certain changes therein, and then ship the same back to the defendants, the plaintiff to pay the freight each way, and then, if the machine was satisfactory, the balance of the purchase-money was to be paid. The plaintiff was not to receive one cent in addition to the original purchase-price of the machine, but was to go to the expense of making repairs and pay the freight both ways. There was no consideration for this agreement. It was purely a voluntary undertaking on the part of the plaintiff. At the time when it was made the plaintiff was in a position where it could have demanded the balance due on the purchase-mone3, and the defendants, under the new agreement, were under obligation to do no more than what they would be already compelled to do; that is, to pay the balance of the purchasemoneju We will not undertake to deal with all of the assignments •of error on the different instructions of the judge; as it will sufficiently appear, from what has been said, in what particulars we deem the instructions appropriate as well as wherein we deem them erroneous. A new trial should have been granted. 'Judgment reversed. All the Justices concur.