Meredith v. Fay & Egan Co.

Stephens, J. 1. Where a written contract for the sale of particularly described machinery, generally referred to in the contract as a “planer and matcher” and a “trimmer,” expressly provides that in case of rejection of the property the purchaser will deliver it to the seller f. o. b. Cincinnati, and that this contract “is not modified or added to by any agreement not expressly stated herein, and that a retention of the property forwarded, after thirty days from its arrival at destination, shall constitute a trial and acceptance, [and?] be a conclusive admission of the truth of all representations made by or for the consignor [seller], and a fulfillment of all its contracts of warranty expressed or implied,” the purchaser, who has retained the property for more than thirty days after its arrival at destination, although in the meantime he may have given to the seller notice of certain alleged defects in the property and of his dissatisfaction with the property by reason of such defects, has, by the terms of the contract, accepted the property and waived any right to call upon the seller for damages for a breach of any of the warranties, express or implied. Fay & Egan Co. v. Dudley, 129 Ga. 314 (58 S. E. 826). 2. The terms of the contract govern the rights of the parties, and any efforts made by the seller to remedy the alleged defects pointed out by the purchaser will not amount to a waiver by the seller of his rights under the contract to hold the purchaser to an acceptance of the property sold, upon failure to return it within the thirty days stipulated in the contract. The failure of the purchaser to so return the property will amount to a waiver of any right to call upon the seller for damages for breach of warranty. 3. Where the defects in the machine are patent and are easily discoverable when using the machine, the purchaser can not defend against a suit on the contract by the seller on the ground that the seller’s express or implied representations as to the character of the machine constituted a fraud. 4. Where the delivery of the property sold was made by the seller beyond the time contracted for, an acceptance of the property by the purchaser, without protest upon the ground of delay, and the execution by the purchaser of the purchase-money notes, upon delivery of the property, and a payment by the purchaser of one of the purchase-money notes after delivery of the property, amount to a waiver by the purchaser of any right to damages against the seller for delay in delivery. Moore [507] v. Smith Machine Co., 4 Ga. App. 151, 153 (60 S. E. 1035); Lingo v. Phœnix Hermetic Co., 31 Ga. App. 547 (4, b) (121 S. E. 253). Decided February 28, 1927. 5. In a suit by the seller against the purchaser to recover for the unpaid purchase-money of the machinery delivered under the contract, applying the above rulings to the undisputed evidence, the court did not err in directing a verdict for the plaintiff. Judgment affirmed on the main hill of exceptions; cross-hill dismissed. Jenkins, P. J., and Bell, J., concur. Walter S. Dillon, for Meredith. J. Cassidy Grimes, Bryan & Middlebrooks, contra.