Troendly v. J. I. Case Co.

• Decision Date: 12 February 1932
• Docket Number: 5774
• Citation: 8 P.2d 276,51 Idaho 578
• Parties: JOHN H. TROENDLY, Jr., Respondent, v. J. I. CASE COMPANY, Sometimes Called J. I. CASE THRESHING MACHINE COMPANY, Appellant
• Court: Idaho Supreme Court

8 P.2d 276

51 Idaho 578

JOHN H. TROENDLY, Jr., Respondent, v. J. I. CASE COMPANY, Sometimes Called J. I. CASE THRESHING MACHINE COMPANY, Appellant

No. 5774

Supreme Court of Idaho

February 12, 1932

SALES-BREACH OF WARRANTY-RETURN OF GOODS.

1. Provision that buyer shall notify seller about any defect in machine, that seller may make machine comply with warranties must be complied with, absent fraud or waiver.

2. Buyer's return of defective machine held condition precedent to action for breach of warranty.

3. Provision that buyer return defective machinery, "to place it was received," was sufficiently definite, and required only that buyer return it to dealer, or station where unloaded.

4. Evidence held not to show waiver of requirement that buyer return defective machinery as condition precedent to right against seller, even if time within which it should be returned was waived.

5. Generally, fact of waiver is question for jury.

6. Where facts, if admitted to be true, fail to establish waiver as matter of law, jury's contrary finding cannot stand.

7. Contract provision held to prevent waiver by seller's agent of provision requiring buyer to return defective machinery as condition precedent to action against seller.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. William A. Babcock, Judge.

Action for damages for breach of warranty. Reversed and remanded with instructions.

Reversed and remanded with directions. Costs to appellant.

H. R. Turner, for Appellant.

"Where the contract contains notice of the limitation of the agent's authority to alter, modify or extend any of the conditions of the contract or to make any other or different contract, the purchaser is bound by such notice." (2 C. J., p. 607, par. 242.)

J. H. Barnes and Walters, Parry & Thoman, for Respondent.

The provision for return of the machine that we find in the contract is unenforceable. (J. I. Case T. M. Co. v. Scott, 96 Wash. 566, 165 P. 485.)

Retention of the machine beyond the trial period is not an acceptance when such retention is induced by promises of the seller. ( Advance Thresher Co. v. Vinckel, 84 Neb. 429, 121 N.W. 431; Lathrop v. Maddux, 58 Colo. 258, 144 P. 870; Massillon Engine & Thresher Co. v. Schirmer, 122 Iowa 699, 98 N.W. 504; National Computing Scale Co. v. Eaves, 116 Ga. 511, 42 S.E. 783.)

VARIAN, J. Lee, C. J., and Budge, Givens and Leeper, JJ., concur.

OPINION

VARIAN, J.

Respondent brought this action originally for rescission and incidental damages on account of fraud in the inducement of a contract for the purchase of certain threshing machinery. A judgment granting this relief was reversed because of insufficiency of the evidence to sustain the same, this court holding that there had been no sufficient proof of a return or offer to return the machinery so as to entitle plaintiff to rescission, and that the oral warranties were embraced in the written contract. (Troendly v. J. I. Case Co., 50 Idaho 506, 297 P. 1103.) Thereafter, on the coming down of the remittitur, plaintiff amended his complaint, without objection, claiming a breach of warranty under the contract, and defendant, by cross-complaint, set up a chattel mortgage on the machinery involved and asked for foreclosure thereof. A jury trial resulted in a verdict for plaintiff in excess of the amount proven to be due defendant under the chattel mortgage. No relief whatever was granted under the cross-complaint. Defendant appeals. The question is not raised, and therefore we do not decide, whether respondent in his first complaint elected to pursue his remedy of rescission and should be bound thereby as to inconsistent relief now sought.

The contract of purchase contained the following clauses:

"1. Said machinery, (except belting, magnetos, carburetors, and other attachments or devices, not made by the company,) is purchased upon and subject to the following express warranty and agreement and no other, viz.:

"2. It is warranted to be well made of good material, durable with good care, and, if properly operated by competent persons, to be capable of doing as much and as good or better work than other makes of machines of equal size working under the same conditions on the same job.

"3. If, after its operation by the purchaser in the manner aforesaid for a period of six days from first use, said machinery shall fail to fulfill such warranty, written notice thereof by registered letter shall be given at once to J. I. Case T. M. Co., at Racine, Wis., stating wherein it fails to fulfill the warranty, after which notice, reasonable time shall be given the company to send a competent person to remedy the difficulty, unless it be of such nature that a remedy may be suggested by letter; the purchaser to render necessary assistance without compensation for labor or material furnished.

"4. If, after such notice and opportunity to remedy the difficulty, the company fails to make the machinery fulfill the warranty, the part that fails shall be returned immediately by the purchaser, free of charge, to the place where it was received and the company notified thereof in writing at Racine, Wisconsin, whereupon, the company shall have the option to furnish another machine or part in place of the one so returned, which shall fulfill the warranty, or to return the money and notes or proportionate part thereof, received for the machine or part so returned, and this contract shall be rescinded to that extent and no further claim made on the company.

"5. Failure to make such trial or to give such notice or to return such machinery or parts, as aforesaid, shall be conclusive evidence of due fulfillment of the warranty. If any part of a machine (except belting, magnetos, carburetor, and other attachments or devices, not made by the company, which are not warranted,) shall fail, from defect of material, within one year from date of purchase, the company has the option to repair the same or to furnish a duplicate thereof, free of charge, on presentation of the defective part.

"6. It is agreed there is no express, implied, or statutory warranty by the company of quality, fitness, or capacity, of the goods above described other than or different from the printed conditional warranty aforesaid."

The amended complaint expressly declares upon a violation of the warranty contained in paragraph 2 above, and alleges:

"That beginning on or about the 26th day of August, 1929, and repeatedly and frequently up until about the 28th day of October, 1929, plaintiff offered to return the combined harvester and attachments to defendant, free of charge, at the place where the same was by him received, but that defendant at all of such times informed plaintiff that it would not accept the return of said machine and attachment at said place or any place, and that by reason of defendant's own acts and statements a tender of said machine to defendant at the place where received by plaintiff was and would have been at all such times a useless act."

Experts accompanied the machine when delivered and worked upon it at various times, in an endeavor to make it function, until toward the end of its operation. After the experts had left, and after Reilly, the last expert, had informed respondent that it could not be made to work, respondent continued to use the machinery until he had finished harvesting his own grain. On October 18, 1929, the parties agreed upon a settlement whereby the windrower was taken back and credit given respondent on his note. The six days notice of defects, required by paragraph 3 of the contract, supra, to be given appellant, admittedly was waived.

In the absence of fraud, or circumstances amounting to a waiver, the stipulation in the contract (par. 4, supra) providing that where the seller fails to make the machinery fulfill the warranty, after notice of defects and opportunity given the company to remedy the same, the defective parts shall be returned, by the purchaser, to the place where received, and the seller given the opportunity to furnish a new machine or return the purchase price, must be complied with (55 C. J. 794, secs. 765, and 766); and no action for breach of warranty can be maintained unless the machinery is returned. The return, or offer to return, of the defective machinery was therefore a condition precedent to maintaining the present action. (Wasatch Orchard Co. v. Morgan Canning Co., 32 Utah 229, 89 P. 1009, 12 L. R. A., N. S., 540; Consolidated Wagon & Machine Co. v. Barben, 46 Utah 377, 150 P. 949; F. C. Austin Mfg. Co. v. Clendenning, 21 Ind.App. 459, 52 N.E. 708; J. I. Case T. M. Co. v. Badger, 56 Ind.App. 399, 105 N.E. 576; Nichols-Shepard Co. v. Rhoadman, 112 Mo.App. 299, 87 S.W. 62; Nichols & Shepard Co. v. Stubbs Thresher Co., 160 Ky. 694, 170 S.W. 4.)

The machinery was not returned to the place where it was received and respondent contends, first, that the requirement was unenforceable because the terms could not be literally complied with without committing trespass. (J. I. Case T. M. Co. v. Scott, 96 Wash. 566, 165 P. 485.) The contracts are very similar in the cited case and in the case at bar, which reads:

"J. I. Case T. M. Company, (Hereinafter called the Company), Racine, Wisconsin. You will please deliver on or before the 1 day of August, 1929, (or as soon thereafter as can furnish for transportation or delivery), to Twin Falls (Name of Railway Station) County Twin Falls, or other convenient station in the State of Idaho in care of Twin Falls Imp. Co., (Dealer or Company) for the undersigned purchaser, the following goods: . . . . The purchaser agrees to receive same on cars on arrival, pay Freight and Charges thereon, and settle for the total purchase price of $ 3326.50."

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