93 Ga. App. 731 | Ga. Ct. App. | 1956
We have set out all of the evidence which is material to the determination of this case. The terms of the sales order signed in triplicate by the defendant, bearing the same date as the note signed by the defendant, show that the defendant agreed to give the machine a fair trial as soon as possible after receiving the machine; and that, if the machine failed to fulfill the warranties given by the company (set out in the sales order), then the purchaser is “to give the seller written notice within three days after said trial, stating the nature of the trouble, and allow a reasonable time for the seller to send a competent man to examine it . . . and remedy the trouble.” This the purchaser failed to do.
We are fully cognizant that it is never error to refuse to direct
Nor is the contract unilateral, as in Lowery Lock Co. v. Wright, 154 Ga. 867 (1e) (115 S. E. 801), and Mallet & Nutt v. Watkins, 132 Ga. 700 (64 S. E. 999, 131 Am. St. R. 226).
It is contended that the evidence showed a waiver by McArthur Tractor & Implement Company of the terms and conditions in the warranty agreement printed on the back of the sales order. Counsel cites Gray Lumber Co. v. Harris, 8 Ga. App. 70 (68 S. E. 749), in support of this contention. In the case cited there was some evidence to show waiver, but we do not consider that any element of evidence in the instant case indicates waiver. We have read and considered all other cases cited by counsel for the defendant, i.e.: Kennedy v. Manry, 6 Ga. App. 816 (66 S. E. 29); Barkley v. American Nat. Ins. Co., 36 Ga. App. 447 (1) (136 S. E. 803); Stapleton v. Dismukes, 43 Ga. App. 611, 621 (159 S. E. 768); Loftis v. Metropolitan Casualty Ins. Co. of New York, 46 Ga. App. 438, 442 (167 S. E. 729); Sentinel Fire Ins. Co. v. McRoberts, 50 Ga. App. 732, 738 (179 S. E. 256); City of Albany v. Mitchell, 81 Ga. App. 408 (1) (59 S. E. 2d 37); and Philadelphia Fire &c. Ins. Co. v. Burroughs, 176 Ga. 260, 262 (168 S. E. 36). We do not consider that these cases are authority for a reversal of the instant case, since the pleading and evidence differ materially from those of the instant case.
The court did not err in denying the motion for a new trial for any of the reasons assigned.
Judgment affirmed.