Emmerich v. Joliet Oil Tractor Co.

Mr. Presiding Justice McBride delivered the opinion of the court. 3. Sales, § 432*—when title to machine is in seller. In an action to recover the money paid on a machine and the amount of notes for the remainder, where the machine failed to Comply with a guaranty, and it was contended that if the judgment for plaintiff were permitted to stand he would have both the machine and the money, and where it appeared that¡ the contract provided that unless payment was made in cash the title should remain in the defendant until the cash was paid, held that if the plaintiff was permitted to retain his judgment he could not under any circumstances claim title to the property. 4. Sales, § 148*—when timely notice of failure of machine to work is waived. In an action to recover the part paid on a machine and the amount of notes given for the remainder, where plaintiff claimed that the machine failed to comply with a guaranty, and defendant contended that as the contract provided that, if the machine failed to work, notice should be given within three days, and a notice was not given until after five days from the day of the arrival of the machine, plaintiff was not entitled to recover, held that the point was untenable, as when the notice was given the defendant sent his agent to adjust the machine, which constituted a waiver. 5. Evidence, § 223*—what constitutes hearsay. A report given to an employer by his agent sent to adjust a machine which failed to work constitutes hearsay testimony. 6. Sales, § 354*—when return of machine is not prerequisite Ho beginning of action to recover price paid. Where a contract for purchase of a machine provides that, upon its failure to work, the seller is to take it back, the purchaser is not required to return it as a prerequisite to beginning an action to recover the price paid, where there was a breach of guaranty. 7. Trial, § 232*—when permitting jury to take incorrect copy of instrument to jury room is not error. An objection that the copy of a contract instead of the original was permitted to be taken to the jury room, held without merit, as no objection was made, and because the contracts were identical except as to the arrangement of signatures.