178 P. 111 | Okla. | 1919
On August 11, 1914, the Thwing Instrument Company sold the Constantin Refining Company of Tulsa a recording pyrometer and six thermocouples, the consideration therefor being $350, payable one-half in 30 days, the balance in 90 days from installation. As a part of the consideration the instruments were to be installed under the supervision of the seller, who guaranteed "the perfect working of the instrument" for two years. After installation, and on September 24th, the instrument company wrote the refining company, demanding payment of the first installment, which letter the refining company did not answer. Again, on October 21st, the vendor wrote the refining company, calling attention to the past-due installment, and asked for payment thereof. This letter likewise remained unanswered. On November 10th the vendor drew a sight draft on the refining company for the full amount of the purchase price, which draft was returned unpaid. On December 1st following a third letter was written the refining company, complaining of its action in failing to pay the draft drawn on presentaton. On December 11th the president of the refining company wrote the instrument company, admitting the receipt of its letters, and stating that the account would have been paid had the president of the company, C.B. Thwing, "finished the installation of the same" (referring to the pyrometer and thermocouples), and in which letter it was further stated that the instruments were of no use because of a defect in the "registering sheet riding over the roller." This letter, according to the evidence, was not mailed until December 21st. Immediately upon its receipt the instrument company wrote the refining company again, complaining of its action in not meeting its obligation, and informed it how the defect could be overcome, and at the same time sent a considerable number of extra charts for the use of the refining company. These charts or registering sheets, it was claimed at the trial, were not received by the refining company, and on January 5, 1915, 100 additional charts were sent by insured parcel post to the refining company. The defense of the refining company was a breach of warranty of the instrument sold it.
The first error assigned is the giving of instruction 4 and the refusal to give defendant's requested instruction No. 4. We have examined these instructions, in connection with proposition No. 2 of the plaintiff's brief, and are unable to see wherein the court erred in giving and refusing the respective instructions. The instruction given informed the jury that it was the duty of the defendant under the contract in evidence, to notify plaintiff of any defect in the instrument within a reasonable time after such discovery; but, if after a defect was discovered by defendant, and within two years (time limit of the guaranty) after the installation of the instrument, and before the commencement of the action, defendant notified plaintiff of the defect, and plaintiff endeavored to correct the same, then plaintiff waived its right to object to the sufficiency of the notice. This instruction was most favorable to the defendant company, which for more than months had failed to notify plaintiff of any defect in the practical operation of the registering instrument. Indeed this very point is made by the plaintiff in error in its argument of proposition No. 2, wherein it says:
"If notice was necessary, did the plaintiff, by sending charts to remedy a defect, waive the notice? This proposition is discussed on the presumption that a potice was necessary, which is denied, and it is proposed to be shown that the action of plaintiff absolutely waived the notice."
This, in substance, is what the court told the jury in the instruction. *18
Very much the same situation is presented in respect to the defendant's requested instruction No. 4, which informed the jury that it was no part of the duty of the defendant to give notice of the defect in the pyrometer, as, whether it was or not, notice was given of which the plaintiff took cognizance and attempted to remedy the defect complained of.
Propositions numbered, respectively, 3 and 4 urge that the verdict of the jury is contrary to law and the evidence, and may be considered together. Each urge the insufficiency of the evidence to sustain the verdict. A very similar question presented in the third propositon was before the court in Norman v. Lambert,
"In a civil action we can only reverse upon exceptions, and are compelled to disregard all errors committed by the trial court, unless they were pointed out by an objection and saved by an exception, no matter how serious those errors may be. Wicks v. Thompson,
The judgment of the trial court is affirmed.
All the Justices concur, except TURNER., J., and BRETT, J., absent.