Brooks Bros. Lumber Co. v. Case Threshing Machine Co.

Atkinson, J. 1. Where there is a sale of personal property under an express warranty as to quality, there is no implied warranty. Civil Code (1910), § 4135; Johnson v. Latimer, 71 Ga. 470; Malsby & Avery v. Young, 104 Ga. 205 (30 S. E. 854); Elgin Jewelry Co. v. Estes & Dozier, 122 Ga. 809 (50 S. E. 939); Moultrie Repair Co. v. Hill, 120 Ga. 730 (48 S. E. 143). .,■2; Where in a sale of machinery there is an express warranty as to quality, and by the terms of the warranty liability of the seller is predicated upon conditions which must be performed by the buyer before liability upon the part of the seller is to attach, such as that the buyer is to take the property on'trial for a specified time, and, upon its failure to fulfill the warranty, give written notice at once to the seller at a designated place, and also to the agent of the seller through whom the property was received, stating in what parts and wherein the property fails [755] to fulfill tlie warranty, the seller will not be held liable on the warranty unless the buyer complies with such conditions. International Harvester Co. v. Dillon, 126 Ga. 672 (55 S. E. 1034); Beasley v. Huyett, 92 Ga. 273 (2), 278 (18 S. E. 420); McCormick Machine Co. v. Allison, 116 Ga. 445 (42 S. E. 778); Mayes v. McCormick Machine Co., 110 Ga. 545 (35 S. E. 714); Fay & Egan Co. v. Dudley, 129 Ga. 314 (2) (58 S. E. 826); Walker & Rogers v. Malsby Co., 134 Ga. 399 (67 S. E. 1039); Fahey v. Easterly Machine Co., 3 N. D. 220 (55 N. W. 580, 44 Am. St. R. 554). August 22, 1911. Complaint. Before Judge Felton. Bibb superior court. April 27, 1910. L. D. Moore, for plaintiff in error. T. E. Byals, contra. [a) And where the warranty'also contains the provision: “Any assistance rendered by the company, its agents or servants, in operating said machinery, or in remedying' 'any actual or alleged defect, either before or after the ten days’ trial, shall in no wise be deemed any waiver of or excuse for any failure of the purchaser to fully keep and perform the conditions of this warranty,”- it will not amount to a waiver of compliance with the conditions imposed .upon the buyer, if the seller, without the required notice, upon the request of the buyer undertakes to assist the buyer in perfecting the property/ to the end that it may come up to the standard of efficiency mentioned in the warranty. 30 Am. & Eng. Ene. Law (2d ed.), 202. 3. An amendment to the defendant’s plea, introducing new matter, of defense, opened the plea as amended to demurrer, although a former amendment, containing, in substance, a part of what was set out in the last amendment, had been allowed over plaintiff’s oral objection. 4. Under the rulings announced in the preceding notes, there was no error in dismissing the plea as amended on general demurrer. 5. Where error is assigned upon the direction of a verdict, and the evidence is not contained in the record, this court can not say that the verdict was improperly directed. Judgment affirmed. Beck, J., absent. The other Justices concur.