53 S.E. 727 | N.C. | 1906
Action to recover the price of certain merchandise sold defendant by plaintiff under a written contract. Certain issues were submitted to the jury. From the judgment rendered, plaintiff appealed.
The jewelry was sold to defendant under the terms of a written contract, the execution of which was proven and the contract was introduced in evidence. According to the terms of this contract the defendant waived all right to claim that the goods did not come up to sample or were not according to order, unless defendant complied with the terms of the warranty and exchange in the contract. According to the terms of this obligation the plaintiff was entitled to notice of any alleged defect in the goods as to quality and to be given an opportunity to remedy and deficiency before defendants could repudiate the entire contract. This is a condition precedent to any action or counterclaim upon the part of the defendant looking to a recovery for a breach (44) of the warranty upon its part. Shephard v. Larkin,
We do not think the case was tried upon the issue raised by the pleadings.
New trial.
HOKE, J., concurs in result.
Cited: Main v. Field,