7 Ga. App. 631 | Ga. Ct. App. | 1910
Lead Opinion
The plaintiff in error sued the defendant on a promissory note for $475 and interest. The defendant admitted the execution of the note, and pleaded total failure of consideration, resulting from breach of express warranty. The note was given for a balance due on the purchase-price of one 12 horse-power, portable, wood-burning- engine, the purchase-price being $675, of which the defendant paid $200 on receipt of the engine.
The defendant asked judgment against the plaintiff for the $207, and for $40.53 paid by him as freight. The verdict was for the defendant for the full amount claimed, $247.53, with interest. The plaintiff’s motion for a new trial was overruled.
The evidence was as follows: An order for the engine, signed by the defendant, stated that the engine would be received subject to the following warranty: “The above engine is warranted to be made of good material, durable with good care, to do as good work under the same conditions as any made in the United States of equal size and rated capacity, if properly operated by competent persons with sufficient steam, or horse-power, and the printed rules and directions of the manufacturers intelligently followed. If by so doing, after a trial of ten days by the purchaser, said machinery shall fail to fulfil the warranty, written notice thereof shall at once be given to the J. I. Case Threshing Machine Company at Hacine, Wisconsin, and also to the agent through whom received, stating in what parts and wherein it failed to fulfil the warranty, and the company will send a competent person to remedy the difficulty, the purchaser rendering necessary and friendly assistance, said company reserving the right to replace any defective part or parts, and then, if the machinery can not be made to fulfil the warranty, the part that fails is to be returned by the purchaser, free of charge, to the place where received, and the company notified thereof, and at the company’s option another substituted therefor that shall fill the warrant}', or the notes or money for such immediately returned and the contract rescinded to that extent, and no further claim made on the company. Failure so to make-such trial or to give such notice in any respect shall be conclusive evidence of the fulfilment of the warranty on the part of said compairy, and that the machinery is satisfactory to the purchaser, and the company shall be released from any liability under the contract. . . Failure ,. . to comply with any of the conditions of this warranty on the
1. The verdict for the defendant was not authorized by the evidence and the law. His own testimony shows that he did not comply with the conditions of the contract, which were binding upon him. If the engine did not work after a trial of ten days, and if the plaintiff, on notice of the defect, exercised its option of remedying the defect, and still the engine did not fulfil the warranty, it was the duty of the defendant to return this defective part to the plaintiff, “to the place where received.” He did not do so. . The letters to the plaintiff in which the defendant said that unless the plaintiff made the engine good, “the engine is subject to your order,” or “I call on you now to make good your guarantee, or consider the engine yours,” were in no sense a compliance with this condition. In the case of Malsby v. Young, 104.Ga. 205 (30 S. E. 854), the warranty was almost identical with that under consideration, and the Supreme Court held: “Where a contract gives to the purchasers of personalty sold to them under an express warranty the right, upon compliance with specified conditions, to return the same to the sellers by delivery at a designated place free of freight charges, a mere notice to the latter that the property is held subject to their order is'not a compliance with the terms of the contract.” There the property was an engine, and, as said, the warranty was sub
Of course, it can not reasonably be insisted that the statement by the purchaser to the lawyer of the seller in January, 1908, one year after the purchase of the engine, thát “this is your engine,” was a compliance with the provision of the contract, that it was “to be returned by the purchaser free of charge to the place where received.” Eor was the return of the engine by the purchaser, when sued on the note, to Machen, where it was put in the back of Bullard Brothers’ store, a compliance with the contract; for it was to be returned “to the place where received,” and that place was at Tope’s warehouse in Monticello. Besides, it could hardly be expected that the plaintiff would be willing to receive the engine in the swamp, badly dismantled and misused, or at Machen, in the condition of abuse and injury caused by defendant; and we do not think there was any waiver by the seller of this condition of the contract. The only evidence relied upon as constituting a waiver was the statement made to the defendant by the lawyer of the plaintiff, more than six months after the engine had “broken down,” and when it was down on the creek, badly abused and dismantled, that “the Case people never take back an engine.” According to the defendant’s own testimony, when this statement was made he
%. For other reasons the verdict for the defendant is without evidence to support it, and unauthorized by both the terms of the contract and the law. According to the testimony of the defendant the engine, while in his possession and while operated by him, had been badly abused and misused, and parts taken oil and carried away. Under the contract this conduct of the plaintiff discharged the company from all liability whatsoever. Again, the defendant had in fact used the engine for over a year, he had sawed over 100,-000 feet of lumber with it, and was still using it when suit was fled, or at least parts of it. How can a verdict finding a total failure of consideration lie sustained, under this evidence of the defendant himself. The buyer of this engine, after buying it, and finding that it was not satisfactory, had the election to return it “to the place where received,” and demand the return of his note and the cash he had paid. lie did not do this, but continued to keep the engine and use it for over a year. This conduct on his part can bear but one just construction under the law. He is precluded from the inconsistent defense of rescission, and reclamation of that which he had paid on the purchase-price. He elected to keep and use the engine, notwithstanding its defects. He should be required to pay for it. Fox v. Wilkinson, 133 Wis. 337 (113 N. W. 669, 14 L. R. A. (N. S.) 1107). Judgment reversed.
Concurrence Opinion
concurring specially. I think that while there may have been some waiver of strict compliance with the terms of the contract in this case (see McDaniel v. Mallary Bros. Co., 6 Ga. App. 848 (66 S. E. 146)), yet, under the general law, the plaintiff ■ was entitled to recover.