158 Ill. App. 1 | Ill. App. Ct. | 1910
the opinion of the court.
Under the contract of warranty appellees, after giving appellant a reasonable opportunity to make the machine fill the warranty, if it then did not, were to return the machine to appellant at the place where it was received and notify the appellant thereof by notice in writing to appellant in Racine, Wisconsin, and also to the agent through whom it was received. The appellant received the letter of December 3, 1906, written by Hicks, and by not replying to it appears to have consented to the proposition of appellees to retain the machine until the next season and then try it again. The failure to reply to this letter was an acceptance of the proposition of appellees and a modification of the written contract to that extent, the contract of warranty remaining in force as modified.
After appellant had attempted in October, 1907, to adjust or repair the machine, and appellees in November again tried it, it appears to have still failed to fulfill the warranty. It was then the duty of the appellees under the contract, within a reasonable time thereafter, to return the machine to the place where they received it, and to give appellant notice of such re-' turn. After the trial of the machine, about November 1, 1907, appellees notified appellant’s agent at Bockford that it did not fill the warranty, but did not notify appellant at Racine in writing, and did not return the machinery to the Wheeler farm where they received it, as required by the contract. In October, 1908, about two months before the trial in the County Court, and five months after the entering of the judgment under the cognovit, appellees hauled the machinery back to the Wheeler farm where it had been delivered to them. Such is the case as presented on the part of appellees.
Property in this state cannot be returned by the purchaser because of a breach of warranty, unless the contract of sale provides for the return, and then the return must be made in compliance with the terms of the contract. Where goods are sold with a warranty and there is no fraud in the warranty, then the vendee on a breach of the warranty may not return the goods without the consent of the vendor, and if there is a stipulation that they may be returned, they must be returned within the time fixed in the contract, or if no time is fixed, then they must be returned within a reasonable time. If the goods are not returned, however, the purchaser may show the warranty and the breach in mitigation of damages to reduce the recovery. Owens v. Sturgis, 67 Ill. 366; Crabtree v. Kile, 21 Ill. 180; McMillan v. De Tamble, 93 Ill. App. 65; Tokheim Mfg. Co. v. Stoyles, 142 Ill. App. 199.
To this general rule, however, there is the exception that parties to a warranty may agree on a remedy for a breach and make it exclusive. Where a written contract of sale of machinery contains an express warranty and, provides that in case of a breach of warranty the buyer shall return the machinery and the seller shall have the option to furnish another machine or return the purchase money notes, the buyer, in case of a breach of warranty, is bound to elect within a reasonable time whether he will return the machinery and claim a cancellation of the purchase money notes, or the delivery of proper machinery in lieu of that found deficient, and failing to do so waives the breach and cannot retain the machinery and claim damages in an action for the price. Gaar Scott & Co. v. Hodges, 28 Ky. L. R. 889; Avery Planter Co. v. Peck, 86 Minn. 40; McCormick & Co. v. Allison, 116 Ga. 445; Westbrook v. Reeves, 133 Ia. 655. A contract may be so framed as to deprive a party of Ms legal right to an action for damages in case of a breach, and to require him in lieu thereof to return the property and accept other property that will satisfy the warranty. Kemp v. Freeman, 42 Ill. App. 500.
In this case one provision of the contract is that if the machinery cannot be made to fill the warranty the part that fails is to be returned to the purchaser where received, and the company notified and at the company’s option another substituted therefor, that shall fill the warranty, or the notes and money for such part returned and the contract rescinded to that extent; another provision is that the “purchaser expressly waives all claim for damages on account of the non-fulfillment of said warranty of the above described machinery;” still another is “it is further understood and expressly agreed that any breach of this warranty * * * on the part of the company does not confer any right of damage for delay or loss of work or earnings or to other damages.” The contract is one prepared by appellant with a view of limiting the remedy of the purchaser, for a breach of warranty, to a return of the particular part of the machinery that is the cause of the breach, after a number of necessary contractual prerequisites have been performed by the purchaser; and the purchaser at the same time is required to keep and pay for the remainder of the machinery, which may be useless without the parts that are returned.
It is not the province of courts to make contracts for parties and parties are bound by their contracts which are not in conflict with the statutes or against public policy. Upon the showing of appellees they did not return the machine to appellant at the place where received within a reasonable time, but left it on the farm of Luhman, one of appellees, until about five months after this suit was begun and a year after they decided not to retain it. They had waived their right to return it before they attempted to return it. By their offer of purchase they waived their right to claim damages on account of a breach of warranty and may not now recoup against the notes.
At the close of all the evidence, appellant requested an instruction directing the jury to return a verdict, in favor of appellant, for the amount of the notes in evidence and ten per cent attorney’s fees as provided for in the notes. This instruction the court refused.
The appellant having proved its case and the appellees having failed to prove a defense the court erred in refusing the instruction.
The judgment is therefore reversed and the cause remanded.
Reversed and remanded.
