Nichols, Shepard & Co. v. Root

Gtleillan, C. J. The counterclaim of the defendants is based on a warranty precisely similar to that considered by this court in the case of Nichols v. Knowles, 31 Minn. 489, (18 N. W. Rep. 413.) As held in that case, the written notice to plaintiffs required by the conditions of the warranty might be waived by the plaintiffs. This disposes of the exceptions to the court’s refusal to grant the plaintiffs’ second and third requests for instruction to the jury, for they proceed upon the theory that the defendants could not rely on the warranty unless the notice was in fact given, leaving out of account altogether that the plaintiffs might have waived it; and also of the exception to that portion of the charge in respect to waiver. We cannot see why the defendants could not give the required notice by their agent, in writing, in their behalf, nor why, as their agent for that purpose, they might not select one who, for other purposes, acted as the agent of the plaintiffs. If they authorized Kusick, plaintiffs’ agent for the sale of machines, to give plaintiffs the required written notice, and if he gave it in their name, and on their behalf, it was a proper notice under the warranty. The stipulation as to the notice is silent as to how it shall be given, — whether personally or by mail. But when we consider the nature of the business; the purpose of the notice, which was merely to give the plaintiffs time and opportunity [365] to mate the machine conform to their warranty, if they could; and the distance that the defendants lived from plaintiffs’ place of business, where the notice was to reach them, — we must infer that the parties intended that the notice might be given by properly mailing it. As to what the notice ought to contain, the general charge of the court was correct, and full enough, so that it was not necessary to repeat it at the request of plaintiffs. We see nothing that needs to be considered, in any of the assignments of error, not covered by what we have already said. Order affirmed.