Northern Electrical Manufacturing Co. v. H. M. Benjamin Coal Co.

Mabshaul, J. As we view the record in this case it was the duty of appellant, promptly after the machine was started up and put into the service for which it was purchased,— which seems, unquestionably, to have occurred June 17, 1900, — to decide whether such machine fulfilled the contract, and, if the conclusion was unfavorable, to notify respondent thereof at Madison, Wisconsin, by telegraph or mail. That is what was agreed upon in these words: “If upon receiving and starting said machinery, the purchaser claims that in any way it does not comply with the terms of this contract, he shall promptly notify the company at Madison by telegraph or mail, stating wherein said machinery is faulty.” [135] Compliance with that requirement was a condition precedent to the existence of any claim under- the guaranty. Notwithstanding the duty of appellant as indicated, twenty-two days after the machine was started, it wrote respondent, promising payment in a short time, and making no complaint whatever but that the machinery was satisfactory. It wrote again a few days thereafter, making an excuse for nonpayment of the purchase money, but finding no fault with the machinery. It wrote again nearly a month thereafter, and more than two and one-half months after the machine was put into service as aforesaid, in which, though complaint was made that it did not come up to the calls of the contract, no attempt was made to state wherein it failed to do so. It is not claimed that there was any attempt to comply with the conditions of the warranty in respect to notice of defects except by the letter of August 29, 1900. That such letter was not a reasonable compliance with such condition seems too plain to require any discussion whatever. It contained no specification of defects. Therefore the condition upon which the machinery was warranted was never satisfied. If we were to hold that the letter of August 29th was a sufficient compliance with such condition as to mere matter of form, it would not avail appellant, as the time for it to notify respondent that the machinery was not according to the contract, stating wherein it was not, expired as a matter of law as soon as it had a reasonable time after June 17, 1900, to communicate with respondent at Madison, Wisconsin, in the manner agreed upon. Certainly, two and one-half months was too long for that purpose. If authorities were needed to support the views here expressed, Nichols & S. Co. v. Chase, 103 Wis. 570, 79 N. W. 772, and Trapp v. New Birdsall Co. 109 Wis. 543, 85 N. W. 478, would be ample for that purpose. It follows that, construing the warranty contained in the contract, with the condition precedent to appellant’s right to any benefit thereunder, no actionable breach of contract is dis [136] covered, but on the contrary an acceptance of the machinery as satisfying the contract is established. Some claim was made on the oral argument that respondent, by its conduct, waived the condition of the contract as to notice, above discussed. We are unable to discover anything in the record to warrant that view. There was evidence that respondent acted upon information respecting a slight defect in the machinery, which developed before it was put into the service for which it was purchased, and that the defect was remedied. There is also evidence of some communication having passed between respondent and its agent about appellant’s having trouble with the machinery subsequent to the difficulty that was remedied. But there is no evidence that respondent received any information from its agent in that regard which was acted upon, other than in the instance mentioned. Mere information of defects in the machinery, communicated to respondent in a manner different from that stipulated in the contract, not acted upon, in lieu of the notice agreed upon, did not operate to waive the condition of the guaranty. Davis v. Butrick, 68 Iowa, 94, 26 N. W. 27; Massachusetts L. & T. Co. v. Welch, 41 Minn. 183, 49 N. W. 140. The result of the foregoing is that the court erred in appellant’s favor in not directing a verdict for respondent. That was cured by the verdict which the jury rendered. The judgment is right regardless of whether the errors assigned by appellant would in any event require a reversal thereof. Therefore it is unnecessary to discuss such errors or even give place to the statement of them in this opinion. By the Court. — The judgment is affirmed.