67 N.W. 298 | N.D. | 1896
Defendant ordered of the plaintiff 7,000 pounds of pure Manilla twine. Plaintiff, acting on this order shipped to defendant a lot of twine, which the evidence tends to prove was not pure Manilla twine, but an inferior article, worth much less in the market. Defendant having been sued upon the notes given for the puachase price of this twine, he interposed as a counterclaim an alleged cause of action founded upon breach of warranty. On the trial the District Judge directed a verdict in favor of the plaintiff. Defendant.appeals.
We cannot say, under the facts of this case, that the defendant, as a matter of law, has waived his right to rely upon the warranty, The twine delivered was Manilla twine, but it was not pure Manilla.. It is probable that a special examination of it before acceptance would have resulted in the discovery that it was riot as warranted. Brit the case is not one of the failure of the vendor to deliver any article of the character of that ordered. It was not the purchase of twine, followed by the delivery of some other article. We hold that under the facts of this case the defendant cannot be deemed, as a matter of law, to have waived his right to rely upon the warranty. It is impossible to lay down a rule on this subject which can be readily applied to the varied facts of different cases. Cases may arise where it is apparent that the purchaser could not have relied on the warranty when he accepted
It is claimed by plaintiff and defendant, by renewing the notes given by him for the purchase price of the twine, waived his right to recoup damages for breach of the warranty. But it is evident that, if a cause of action once existed in his favor for damages, the mere giving of renewal notes would not, of itself, extinguish that cause of action. Even payment of the purchase price would not have that effect. Gilmore v. Williams, (Mass.) 38 N. E. 976. The circumstance that a purchaser had given his note, or had paid for the property, with full knowledge of the facts, would generally be persuasive — and might, unexplained, be conclusive — evidence that there was in fact no breach of warranty, or possibly that the purchaser had waived his right. We do not, however, wish to be undestood as holding that a mere waiver by implication, without consideration, would necessarily operate to defeat the claim for damages. But the purchaser might negative the presumption of waiver, if such an act could create such a presumption, by showing that, as a matter of fact, he distinctly asserted his right to rely upon his claim for damages. In the