34 Neb. 411 | Neb. | 1892
This ease was before this court in 1887 and is reported in 22 Neb., 53, the judgment of the court below being reversed. On the second trial of the cause the jury found that the plaintiff had no cause of action, and a motion for a new trial having been overruled judgment was entered on the verdict. The order for the machines is as follows:
“Sandwich Harvester and Appleby Binder.
“ Order for Harvesting Machines, Sandwich Mfg. Co.
“ Please send me two of Sandwich Reliance Harvester and Appleby Binders, six feet cut, including usual extras, to be shipped to Seward on or before the first day of July, care of G. Babson, Jr., at Seward, for which I agree to pay you or your agent the sum of four hundred and eighty dollars as follows: Cash, $480, when the machine has been tested and found to do good work. If all the notes given for the above machine are paid in full on or. before September 1, 1883, said notes shall be subject to a discount of (if*413 harvester and binder combined) ten per cent. If reaper, mower, harvester, reaping or binding attachments, five per cent from their face value, and shall draw no interest. No discount will be allowed on partial payments, until the last note is paid. I further agree to receive said machine on arrival and pay freight and charges from Hoosick Falls, N. Y., and to give satisfactorily secured note or notes for the deferred payment. Settlement to be made before the delivery of the above mentioned machines.
“ Postoffice address, Seward.
“Date, June 25, 1883.
“ G.- E. Feary.
“R. B. Feary.
“G. Babson, Jr., Agt”
The defendants in their answer admit the contract, but say that it was uot to be binding until the machines had been fully tested and found to do good work, and that they did not do good work. They also pleaded a warranty as follows:
“ The Sandwich harvesting machines are warranted to be well made of good material, and durable with proper care. The reaper and mower is warranted to be capable of cutting an acre of grain or grass per hour with one team. The Junior harvester and binder is warranted capable of cutting and binding in a workmanlike manner from ten to fifteen acres, and the Senior harvester and binder from twelve to eighteen acres per day, with sufficient team. If, upon starting the machine, it should in any way prove defective or fail to work, the purchaser shall give prompt written notice to the agent from whom he purchased it, and allow sufficient time for a person to be sent to put it in order, and the defective part, if any, replaced (the purchaser rendering necessary and friendly assistance). If it then cannot be made to work the machine shall be returned by the purchaser free of charge to the place where received, and the payment of money or note will be refunded, ending*414 all further responsibility on the part of either party. Continued possession of the machine, or failure to give notice, as above, shall be deemed conclusive evidence that the machine fills the warranty.
Sandwich Mfg. Co.,
“Sandwich, Ill.
The testimony shows the machines were to be delivered about July 1, but that they failed to arrive until about the 7th of that month; that on the Monday following — the 9th of that month — the agent of the plaintiffs sent two men to the defendant’s residence to assist in setting up the machines. The.-e men did not, so far as appears, claim to be experts nor to be able to remedy defects in a machine. Between 3 and 4 o’clock the defendant started the machine in a piece of barley, about fifteen acres in extent, and went three times around it. The grain seems to have been quite green and in places quite short, and there was difficulty in adjusting the reel and causing the elevator to carry the grain in a proper manner to the binder. Judging from the action of the parties the grain was considered too green to cut and further effort in that direction was deferred until Wednesday, the 11th inst., when the defendant cut twice around the field, but claims to have had .no better success than on the preceding Monday. He testifies, in effect, that the difficulty was the failure of the machine to elevate and bind the grain properly. The first notice given by the defendant to the agent of the plaintiff was oh Wednesday evening, the 11th inst. This was verbal. The company at that time had in its employment an expert named James, who, during the harvest, seems to have spent his time in testing and putting machines in order. This expert was in the neighborhood of Ulysses. The agent sought to reach James by telegraph, but being unable to do so, he, early next morning, drove to Ulysses, reaching there about 6:30 A. M. He then found that James was at the farm of Mr. Cook, about ten miles west of Ulysses. The agent procured a fresh team and sent to
Now will any one contend that the purchaser complied with the terms of the warranty that if, upon starting the machine, it should in any way prove defective or fail to work, the purchaser shall give prompt written notice to the agent from whom he purchased'it, and allow sufficient time for a person to be sent to put it in order, and the defective part, if any, replaced, the purchaser rendering necessary and friendly assistance? In all these particulars the defendants wholly failed to perform on their part, yet they were conditions precedent to their right to rescind the contract and return the machines. A manufacturer is entitled to fair treatment. The fact is well known that many persons are unacquainted with machinery, and, therefore, are unable to put a machine in order or even keep it in good working order, hence many manufacturers keep experts near at hand to make repairs, correct defects, or simply put a machine together properly, so that it will perform good work. Now, presumably the machines in question were capable of doing all that was claimed for
Reversed and remanded.
took no part in the above opinion.