Weise v. Birdsall Co.

Rombattee, P. J., delivered the opinion' of the court. The defendant sold to plaintiff a threshing machine, with written warranty that it was well built, of good materials, and with proper management capable of doing as much and as well as other machines of like size and proportion. The warranty contained the following condition: “The purchasers agree to carefully follow any directions given by the Birdsall Company, in starting and operating the machinery and after giving it a fair trial of one week, if it should not work well, to give written notice to the agent from whom it was received, stating wherein it fails, and also to the Birdsall Company at Auburn, New Tor7c.” The machine failed to work satisfactorily, and the plaintiff brought this action against the defendant upon its warranty, but was non-suited upon the trial, presumably on the ground that he failed to give written notice to the Birdsall Company, at Auburn, New York. The supreme court in Nichols et al. v. Larkin, 79 Mo. 271, says: “No principle of1 law is better settled in respect to such conditions in these machine contracts, than that they are conditions precedent to be observed and performed by the purchaser, and he must show a fair and reasonable compliance with the contract on his part, or he will not be permitted to enforce it against the contractor. Nichols, Shepard & Co. v. Hail, 4 Neb. 210; Miller v. Nichols, Shepard & Co., 5 Neb. 482; Bomberger v. Griener, 18 Iowa, 480; Dewey v. Erie Borough, 14 Pa. St. 212; Dermott v. Jones, 2 Wall. 1, 7. The plaintiff claims that he did give the required notice to the company in Auburn, New York. The only evidence on that subject is that of the plaintiff himself, who says: [232] “Q. Did you at that time give Mr. Mosher (the agent of whom the machine was bought) a written notice of the fact that it would not work? A. Yes, sir. “ Q. At that time? A. Yes, I think I did. “Q. Are you positive — will you swear that you gave him a written notice that the machine would not work? A. Yes, sir. “ Q. Did you send a written notice to the company at Auburn, New York ? A. I took a written notice to the office myself. ‘ ‘ Q. Did you send a written notice in after you brought the machine in ? A. No, sir, I don’t think so ; before the machine was brought in, I gave Mr. Mosher a written notice. “Q. You kept a copy of that, did you? A. I expect I have. “Q. And you sent a copy to the Birdsall Company, New York? A. No, sir, I didn’t send any copy to New York, I gave him the notice.” This evidence under the authority of Nichols et al. v. Larkin, supra, fails to show a performance by plaintiff of a condition precedent to his right of recovery on the warranty, and the court committed no error in instructing the jury that he could not recover. Judgment affirmed. All the judges concur.