88 Mo. App. 350 | Mo. Ct. App. | 1901
Action on two promissory notes given for the purchase price of a self-binding harvester. Defense, breach of the following written warranty: “This implement is warranted to be well made, of good material and with proper management, to do good work. If, on starting it, it should occur that the purchaser can not make it work well, he should immediately notify the local agent who sold it, or D. M. Osborne & Co., whereupon, some one will be sent to put it in order. If it is not then made to do good work, it may be returned at once to said local agent at his place of business and any payments made will thereupon be refunded. Failure to, give notice or failure to return the implement as aforesaid, will constitute an acceptance of the implement. No variations of this warranty, oral or written, will be recognized by us.
“Mount & Donnell,
“Local Agents.”
The point relied on for a reversal, which was raised at various stages of the trial by objections to testimony and by instructions, was respondent’s alleged failure to return the machine. The harvester was bought in 1895, and used a little for three or four years in attempts to make it work. This was done at the solicitation of appellant’s agents. Somebody was sent by the company a time or two to fix it- — once or twice a man, and once a boy who knew nothing about fixing it. One of the experts cut the wings off five or six inches to prevent them from catching on the double-tree and breaking, as they continu
The court committed no error in trying and instructing the case on the theory that, if the warranty was broken, the plaintiff’s agent notified, futile attempts to render the binder useful made, and defendant offered to return it and was prevented by the agent, then the defendant was not liable on the notes. The instruction given carefully charged that way, and those refused were to the contrary, based on the notion that the buyer was bound to return the machine in spite of what the local agent said or did. It is claimed the contract so stipulates. We do not think so. On the contrary, it expressly provides for a return to the “local agent at his place of business.” Clearly when the defendant did this, he had a right to act on the assumption that said agent had authority in regard to receiving it.
We shall not review the numerous cases on the subject of notes given for machines and breaches of warranty defenses thereto. This case is unlike many of them. The respondent
Finding no error in the rulings on evidence or instructions, the verdict can not be disturbed. Judgment affirmed.