110 Ga. 545 | Ga. | 1900
This was a suit by McCormick Harvesting Machine Company against M. A. Mayes, upon a written contract entered into by him for the purchase of a machine for harvesting grain. The portion of the contract necessary to a clear understanding of the issues involved is in the following language: " This machine is warranted to be well made, of good material, and durable with proper care. If upon one day’s trial the machine should not work well, the purchaser shall give immediate notice to said McCormick Harvesting Machine Company, or their agent, and allow time to send a person to put it in order. If it can not then be made to work well, the purchaser shall return it at once to the agent of whom he received it, and all cash and notes received in settlement will be refunded.” On the trial of the case it appeared from the testimony in behalf of plaintiff below that the machine purchased was shipped to its agent, Schilling, at Marietta, Ga., and -that it was delivered to the defendant in ample time for the harvesting of his grain, according to contract. A machine of identically the same make was also purchased by a neighbor from the same company, and delivered to him about the same time. Defendant desired to see the operation of his neighbor’s machine before having his put up, and, after seeing it in operation, the evidence tended to show he expressed entire satisfaction with it, and got the agents of the company to go over to his house, and put up his machine. There was conflict in the testimony as to whether this machine operated to the satisfaction of the defendant when it was tested that same
After the agent at Marietta received the notice, there was sufficient testimony for the jury to infer that within a reasonable time he sent workmen, who offered to put the machine in order. We think, under the contract, that the refusal of the purchaser to allow this opportunity bound him to keep and pay for the machine. This is covered by the charge of the court excepted to in another ground of the motion for a new trial; the court instructing the jury, in effect, that if plaintiff had sent workmen in time, under their contract, to do the work by putting the machine in proper order, and the defendant refused to let them do it, then the plaintiff would be excused from putting it in order, and the defendant would be bound to pay for it; but if, upon giving such notice, they did not appear and put in it order in time, then the defendant would be excused, and would not have to pay for it.