Puritan Manufacturing Co. v. Westermire

84 P. 797 | Or. | 1906

Mr. Justice Moore

delivered the opinion of the court.

1. The agreement entered into by the parties having stipulated that no jewelry received in pursuance thereof should be returned, except for exchange for other goods, it is contended by plaintiffs'5 counsel that the contract itself furnishes the means of relief, and the mode thus prescribed is a condition precedent to the defendant’s right to assert a breach of warranty, and that the plaintiffs never having had an opportunity to exchange any of the goods found to be unsatisfactory, the court erred in admitting, over objection and exception, testimony tending to show the defective condition of the jewelry received by the defendant and of his rescission of the contract. Plaintiffs’ counsel in support of the legal principle which they assert as applicable herein, call attention to several cases holding that under a special contract for the sale of farm machinery, providing that in case of any defect therein constituting a breach of warranty, the purchaser shall give the vendor notice thereof and. allow the latter reasonable opportunity to> remedy the imperfection, a compliance with such terms by the purchaser is a condition precedent to the right of rescission, which can only be exercised in case the necessary repairs are not made by the vendor within a reasonable time. We do not think the rule thus announced is controlling in the case at bar. Machinery is always more or less complicated, and its efficiency depends upon the combined action of integral parts, a radical defect in any one of which disables the whole machine. Such imperfection can be most easily remedied by a person familiar with the minute details of the instrumentality and who possesses a knowledge of their harmonious action, and as the vendor and his agents may be presumed to have had more experience than others not engaged in their line, and are more competent speedily to discover and readily to correct the faults, it is but reasonable that they should be given, as the courts uniformly hold, an opportunity to remedy the defect, before the purchaser is permitted to assert a breach of the warranty or to rescind the contract. Such rule, however, upon principle, can have no application to the failure of the vendor to deliver to the purchaser the identical machinery which the latter orders. If a farmer negotiated for the purchase of a chilled steel, iron beam plow which a vendor agreed to ship to him, it cannot be supposed that the delivery of a wooden beam, cast iron, moldboard plow would comply with the terms of the contract, so as to prevent the purchaser from returning the article received. Contracts for the sale of machinery upon the terms indicated imply a substantial compliance with the agreement of purchase.

It will be remembered that the contract entered into by the parties hereto authorized the defendant, after the expiration of 60 days from the receipt of the jewelry, to return any article thereof on account of defective workmanship or quality, and to receive in exchange therefor other goods. This stipulation assumes that the goods to be delivered would substantially comply with the terms of the contract of sale, but that if a few articles should be found to be defective in the particulars specified, they might be exchanged after displaying them for at least 60 days. If, with a few exceptions, the jewelry received had corresponded' with specifications thereof as to quality, the terms of the contract in respect to the exchange of the small number of excepted articles would probably have been the mode necessary to be pursued to correct a mistake made by the vendors in selecting the goods. The court found, however, that the plaintiffs did not deliver to the defendant any of the goods, wares or merchandise embraced in their agreement. The findings specify the particulars wherein the jewelry delivered to the defendant entirely failed to correspond with the goods which he ordered, the details of which it is not deemed essential to enumerate.

2. The jewelry having been sold by description, there was an implied condition that the articles delivered should substantially correspond in their entirety to the representations of the vendor made in respect to their quality : Morse v. Union Stock Yards Co., 21 Or. 289 (28 Pac. 2, 14 L. R. A. 157); Wadhams v. Balfour, 32 Or. 313 (51 Pac. 642); Lenz v. Blake, 44 Or. 569 (76 Pac. 356).

There being an entire failure in this respect, as the court found, the defendant was at liberty to treat the contract as rescinded by returning the goods, and, having done so, the judgment is affirmed. Affirmed.