15 S.E. 939 | N.C. | 1892
Lead Opinion
PLAINTIFF'S APPEAL. The purchaser of the machinery, by the terms of the contract, had a reasonable time after he received it to make known its defects. But he seems to have kept and used the machinery without complaint for some length of time, indeed until the plaintiff sought to recover the property under the contract because of failure to pay for it. If the objection was not made known within reasonable time, and the purchaser continued to use the machinery without objection, this was a ratification. If the plaintiff then proceeded to recover the property, it was entitled to claim the forfeiture provided for in (92) section 5 of the contract, unless for any reason that should be relieved against in equity, and it certainly would have been entitled at least to the freight both ways and to show the damage to and deterioration of the property. If the objection was made known to the seller within reasonable time so as to avoid the sale, still, if there was any damage, caused by the purchaser, other than the deterioration from attempting to use the machinery in a proper way, it could be shown. The burden was on the defendant to show that the presumption of liability for the purchase money from receipt and use of the machinery was rebutted by objection made within a reasonable time. Upon the state of facts found it was error to reject the testimony offered by the plaintiff that "the property had been greatly endangered by the defendant, and greatly deteriorated by its constant use by him ever since its delivery to him."
It may be that the purchaser within a reasonable time notified to the seller the objections to the machinery and offered to return it. But this is neither pleaded nor shown in evidence. Nor is there anything in the reply which (as defendant contends) cures the failure to allege in the complaint that notice of the defect in the machinery was given within a reasonable time.
ERROR.
Cited: S. c.,
Addendum
We concur with his Honor that the defendant was not entitled to recover by way of counterclaim the cost of the house which he had specially built for the use of the machinery. This is not pleaded as special damages, and besides, it is too remote. It is settled by the leading case of Hadley v.Baxendale, 9 Exch., 341, and in many others, that where there is a breach of warranty as to quality, the purchaser (1) may refuse to accept the goods; (2) if purchase money is paid, he may return the goods and sue to recover back the money paid; (3) or he may plead the breach of warranty in diminution of the price. 2 Benjamin on Sales, sec. 1348; 4 Ed. Ledg. Dam., 291.
Special damages for breach of warranty must be specially pleaded, and must, besides, be such as were within the contemplation of the parties as the necessary result of the breach of warranty, and are rarely allowable except in cases of fraud in inducing the contract. Where an action was for breach of warranty of a reaping machine, it was held that the plaintiff could not recover for the time and grain lost in attempting to operate the defective mower. Frohrich v. Gammon,
The defendant is not entitled to nominal damages for breach of warranty, as by failure to give notice in a reasonable time or pay for the machinery, the plaintiff was driven to his action to recover the property under the terms of the contract.
NO ERROR.
Cited: S. c.,
(94)