31 Minn. 489 | Minn. | 1884
This is an action upon two notes given for part of the price of a steam thresher engine, sold by plaintiff to defendant, with the following warranty, viz.: “This engine is ordered, purchased, and sold subject to the following express warranty and agreement, viz.: That the said engine is well made and of good materials, and, if
It remains to apply this exposition of the warranty to the case, first premising that there was evidence tending to show that the engine was defective in its materials and in its make, and that it would not develop the rated power. The notices are required to be in writing, but of course a formal not’ce may be altogether waived, and, a
It is claimed that there was evidence of a like waiver as respects the notice to the plaintiffs. To this we are unable to assent. The •evidence upon the subject tends to show that one Hickman was sent ■out by plaintiffs to “visit” and “see to” and “fix up” engines which they had sold in different parts of this state; that certain persons (Doten and Yan Dorn) claimed to have been acting for the defendant, met Hickman while he was in the neighborhood, in plaintiffs’ employment, as aforesaid, and informed him of the defects and incapacity of the engine in question, and that thereupon he promised to come and fix the engine in the course of a week. This notice to Hickman appears to have been given within 10 days after the defendant “started” the engine. Hickman, it appears, did not come to see to or “fix” the engine at all. This is, in substance, the evidence upon which the defendant contends that the plaintiffs waived the written notice to which they were entitled by the terms of the contract. In other words, the acceptance of the oral notice by Hickman, by his promise, without objection, to come and fix the machine, is the waiver contended for. In our opinion there is a fatal objection to the defendant’s position. There is no evidence whatever tending to show that Hickman was authorized to receive the notice provided for in the contract of warranty, for or in behalf of the plaintiffs, and no evidence whatever tending to show that he had the least authority to waive it; nor that the notice which was given to him was ever accepted or acted upon by plaintiffs, or his action in the premises ratified by them. The notice given to Hickman was, therefore, wholly ineffectual to bind the plaintiffs. And as no notice was given to
The views of the trial court, as appearing in instructions to the jury and refusals to instruct, were wholly inconsistent with the views above expressed, and there must, therefore, be a new trial.
This disposes of all the errors assigned by plaintiffs which it seems to be necessary to consider at this time. The alleged errors which are not covered by what we have said relate mainly to matters of fact.
Order reversed, and a new trial directed.