53 N.Y.S. 737 | N.Y. App. Div. | 1898
The plaintiff brings this action to enforce the payment of a note of $100 and interest, given by the defendant in payment of a harvesting machine purchased by him of the plaintiff. A written guaranty accompanied the sale of the machine, by the terms of which the same was warranted to be well made, of good material, and durable with proper care. The warranty also contained the following provisions, viz.:
“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 cannot then be made to work well, the purchaser shall return it at once to the agent of whom he received it, and his payment (if any has been made) will be refunded. Continuous use of the machine, or use at intervals through harvest season, shall be deemed an acceptance of the machine by the undersigned.”
The defendant’s answer alleged that the machine did not do the work for which it was intended, in that it did not properly bind and deliver the bundles of grain which it cut; that notice of this defect was given to the plaintiff’s agent; that the defect was not remedied; and that, before the commencement of this action, the machine was returned to the agent of whom it was purchased. Upon the trial, considerable evidence was given tending to show that the machine did not perform its work satisfactorily, nor in accordance with the terms of the warranty. It was made to appear that, upon the day when it was first used, the defendant, discovering that it was a defective machine, notified the plaintiff or its local agent of that fact, and that a representative of the plaintiff was thereupon sent to the defendant’s farm, to see what the defect was, and to remedy the same if possible. Several other attempts, on different days and in different fields of grain, were made to use the machine, but on each occasion it was found to work unsatisfactorily; and it is virtually conceded that it
The provision in the contract of warranty which requires the purchaser, upon discovering that the machine is not working satisfactorily, to return it “at once” to the agent, means simply that he shall return it within a reasonable time; and what is a reasonable time is generally a question of fact, and not of law. Pierson v. Crooks, 115 N. Y. 539-551, 22 N. E. 349. Especially is this the case where there is any dispute as to the facts, or where different and conflicting inferences may be drawn by a jury from facts which are not in dispute, Roth v. Railroad Co., 34 N. Y. 547-553. As has already been suggested, there is little or no controversy in the case at bar concerning the inability of the machine to properly perform the work which it was warranted to perform; but, as regards the defendant’s omission to return the machine immediately upon becoming satisfied that it did not fulfill the plaintiff’s representations, there is some evidence' which is not only conflicting in its character, but is, we think, such as will permit different and diverse inferences and conclusions to* be drawn therefrom. To illustrate: The defendant testified that after attempting to use the machine in his own wheat field, and! discovering that it would not work satisfactorily, he was requested" by the plaintiff’s agent, who was present, to try the machine in another field, where it was thought the wheat was in better condition, and that he thereupon stated to such agent that, if it did not work better there, he did not want it, and that he did not think be wanted it anyway; that thereupon the agent replied: “If it don’t work better than it has here,—better than we have seen it work today,—I don’t want you to have it, and you need not have it.” It is not denied that the man who is alleged to have made this remark was an agent of the plaintiff, sent by it to the defendant for the express purpose of remedying any defect which might be discovered in the machine; and, within the terms of the contract, he had ample authority, in the event that the machine was found to be defective, to take it back from the defendant, and release him from any or all of the condi
Order granting a new trial reversed, with costs to the appellant, and judgment upon the verdict directed in favor of the defendant. All concur.