27 Mo. App. 1 | Mo. Ct. App. | 1887
This suit is for the price of a Buckeye feed-mill and corn-sheller. It was begun before a justice of the peace, and appealed to the circuit court. Plaintiffs lost the cause in both courts.
The property was sold with an express written warranty, that it would do as good work as any iron sweep
“ Should the mill fail to fulfill the above warranty,, after a trial of one day, we, -or our agents, shall be notified of the fact, and time will be allowed for a second trial; then, if we fail to fill said warranty, and the fault is in the mill, it will be taken back, and a perfect mill given in its place.” :
Plaintiffs objected to the evidence introduced by the' defendants, for the reason that they had not complied with the above provision.. The objection was overruled,, and is assigned for error.
If the machine did not operate properly, as warranted, it was defendants’ duty to notify plaintiffs, or their agent, under the terms of the contract above quoted; Craycroft v. Walker & Co., 26 Mo. App. 469; Nichols, Shepherd & Co. v. Larkin, 79 Mo. 264. The objection should have been sustained. It is contended by defendants that the mill and sheller were separate machines, and that the warranty only applied to the mill. The evidence does not disclose that they were separate machines. It was one article. . The whole evidence indicates this. One of the defendants testified that he “did not know, that the feed-mill and sheller could be separated. I consider it all one. Do not know yet whether it can be separated or not.”
The judgment is reversed and the cause remanded.