70 Mo. App. 19 | Mo. Ct. App. | 1897
“This machine is hereby purchased and sold subject to the following warranty and agreement, and no one has any authority to add to, abridge, or change it in any manner. All our machines are warranted to be well built, of good material, and capable of cutting, if properly managed, from ten to fifteen acres per day. If, on starting a machine it should in any way prove defective- and not work well, the purchaser shall give prompt notice to the agent of whom he purchased it and allow time for a person to be sent to put it in order. If it can not then be made to do good work the defective part will be replaced, or the machine received back from the' purchaser at the office of the agent from
The replication admitted that said notes were given for the purchase price of said machine and that one of them had been paid by defendant as alleged in the answer. The agreement referred to in the answer and hereinbefore set forth was likewise pleaded haec verla in the replication. It was alleged that the plaintiff had and the defendant had not complied with the terms and conditions of the said agreement. Upon this state of the pleadings there was a trial resulting in judgment for defendant. .
The evidence of the plaintiff tended to prove that the machine was defective in several particulars and incapable of accomplishing the results for which it was warranted; and that as soon after the starting of the machine as this was discovered by defendant he gave notice thereof to the agent of the plaintiff of whom such machine had been purchased. The defendant's right of action was then complete. This right, under the agreement, was subject to avoidance in one of three ways, that is to say, first, by putting the machine in good working order within a reasonable time after the receipt of the notice to the ágent already alluded to, or second, if this could not be done, then to either replace the defective parts of the machine, or, third, to take it back and return the purchase money and notes. * The replication does not plead and the evidence does not tend to prove either of these facts. The most that the evidence shows is that the plaintiff’s agent on receipt of notice, made a vain attempt to put the machine in good working order. Although the plaintiff did not succeed in putting the machine in good working order it might still have avoided the defendant’s right of action by exercising one of the two options
If the plaintiff had, as it did not, offered to replace the defective parts of the machine or to take it back and return the purchase money and notes and the defendant had refused to accept either of such offers, this would have been sufficient to avoid defendant’s action for the breach of the covenant of warranty. The conditions in the agreement were material and dependent obligations and covenants and the party seeking to enforce the warranty therein must show compliance before he can insist on performance by the other party. Kingman v. Schulenberger, 64 Mo. App. 548. And it has been authoi’itatively declared that no principle of 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 terms' of the contract, or he will not be permitted to enforce it against the contractor. Nichols v. Larkin, 79 Mo. 264; Kingman v. Schulenberger, supra.
tracts may not be out of place here. It has been declared that contracts should be construed with reference to the general objects and purposes for which they are entered into by the parties and a rational and harmonious effect should be given to all the parts if possible. Ellerbe v. Barney, 119 Mo. 639; McCulloch v. Holmes, 111 Mo. 445. Courts will not give a meaning to a contract repugnant to that which the acts of the parties have given it when the letter of the contract is not re
In the light of these rules looking at the various clauses of the warranty in their entirety, it seems clear to us that the clause in question is applicable only in those cases where the vendee, after discovering that the machine does not fulfill the conditions of the warranty, retains it during the ensuing harvest without giving notice to the agent of the defect therein. This clause was no doubt designed for the protection of the vendor and to compel the vendee to give timely notice if the machine, when started, was found not to fulfill the warranty or otherwise to be concluded. This construction accords to the agreement a reasonable meaning which it must be presumed was intended by the parties thereto. But when as here the vendee.gives prompt notice that the machine does not meet the requirements of the warranty, and the vendor fails to. remedy the defect or otherwise comply with the obligations imposed by the terms of the warranty, the application of the rule contained in the clause tin question would be most unreasonable. But even if primarily applicable in the case, its requirement must be held by the clearest implication to have been waived by the conduct of the plaintiff.
No rule of law is more firmly settled than that the necessity of the performance of a condition precedent may be waived by the party in whose favor it is .stipulated, either expressly or by implication from his acts. Dobbins v. Edmons, supra; St. Louis v. Ferry Co., 88 Mo. 615; Phillips v. Seymore, 91 U. S. 646. The plaintiff on receipt of the notice that the machine did
Nor is the defendant estopped to maintain this action by the reason of the payment of part of the purchase money, because it appears from the evidence that the defendant was induced to retain the machine by the promises on the part of the plaintiff that it. would make it (the machine) fulfill the warranty. Courtney v. Boswell, 65 Mo. 196; Hayner v. Churchill, 29 Mo. App. 684; Berry v. Machine Co., 62 Mo. App. 41; Steere v. Thresher Co., 40 Mo. App. 485.
The instructions upon which the case was submitted to the jury, while subject to some slight verbal criticism, were substantially correct in their expression of the rules of law applicable'under the pleadings and evidence.
The judgment is obviously for the right party, and must accordingly be affirmed.