A.B. Farquhar Co. v. Hardy Hardware Co.

Decision Date24 October 1917
Docket Number107.
Citation93 S.E. 922,174 N.C. 369
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Halifax County; Allen, Judge.

Action by the A. B. Farquhar Company against the Hardy Hardware Company. Judgment for plaintiff, and defendant appeals. No error.

Party relying upon written warranty is bound by its terms, and must comply therewith.

Suit was brought by the plaintiff against the Hardy Hardware Company for the recovery of the amount of certain notes described in the complaint, and indorsed by the defendant, as follows:

"For value received, we hereby guarantee the payment of and indorse this promissory note, waiving protest and notice thereof, agreeing in case note is not paid at maturity by makers to pay immediately the amount due thereon. Hardy Hardware Co."

These notes were given by the makers as part payment on the purchase price of certain peanut pickers sold by the plaintiff to them under a written contract, which, in each case, was separate and distinct, but identical in terms. Among the provisions contained in said contract is the following:

"It is further understood and agreed that, except the printed warranty, the foregoing lease contains the only terms conditions and contract upon which the property described above is delivered to the lessee, and that the same cannot be varied, altered or controlled except by agreement in writing, signed by both parties hereto. This agreement is subject to the approval of the credit department of the lessors, and their printed warranty is hereby made a part of this agreement."

The printed warranty is as follows:

"All articles manufactured by A. B. Farquhar Company, Limited, are warranted by it to be well made and of good material, and in no instance will be taken back, except in case of imperfection which it fails to correct. A fair trial, say one week, is to be allowed after receipt of machinery and in case of any dissatisfaction on the part of the lessee or purchaser, it must be made known to it or its sales agent within that time and opportunity be given to make it as represented. In case of failure the machinery will be replaced or, if returned by instructions from its main office at York, Pa., payment will be refunded. Parts breaking within one year from date of shipment because of defect shall be replaced on delivery of the broken parts to A. B. Farquhar Company. Ltd., York, Pa.; this is the extent of its liability for damage caused by breakage, etc. No officer, agent or employé has the power to change this warranty, and it may not be changed except in writing over the seal of the company."

The purchase price of each machine was $400. Several of the parties, G. K. Moore, L. H. Kitchen, Balfour Dunn, J. T. Riddick, and J. A. Kitchen, who signed the notes, made cash payments, at different times, after trying out the machines and without having made any complaint as to their condition. The appellant contends that the machines never picked a peanut, were of no commercial value, completely worthless, and merely of an experimental character. H. P. Goodling, the sales manager, testified that the machines had been on the market four or five years, but that the 1913 machine was an improved model, which was tested very successfully, and placed on the market in 1913. There seems to be no evidence that a machine of the same type in any other community had failed to give satisfaction. J. A. Kitchen testified:

"While going, it was the best machine I ever saw."

And again:

"I threshed part of my peanuts with it, and the other part with the Champion thresher."

L. H. Kitchen stated that he picked about 275 bags of peanuts about the first or middle of November, 1913, and did not sign the notes until December of that year, and "I still believe that my brother's opinion is correct, and that with certain changes the machine would be all right."

Herbert Johnson testified:

"I tried one of the machines during the 1914 season, which was more than a year after it was bought, and it picked some peanuts."

Balfour Dunn stated:

"It did as pretty work as any machine I ever saw for the time being, just as long as it ran. I got it in 1913 and used it in 1913 and 1914, and gave it up in 1915. I got off to the number of 306 bags in 1913, which was all my crop."

D. K. Moore testified:

"I picked 400 or 500 bags for myself."

Stuart Smith, of Scotland Neck, R. C. Dunn, of Enfield, and W. E. Daniel, of Weldon, for appellant.

Langston, Allen & Taylor, of Goldsboro, and E. L. Travis, of Halifax, for appellee.

WALKER, J. (after stating the facts as above).

There is evidence to show that the machines were, if properly handled, fit for the purpose for which they were intended, that is, to pick peanuts. It would appear, upon the defendant's own showing, that there was not a failure of consideration, and that the court was correct in submitting the case to the jury upon the evidence. There also was a separate consideration between the guarantor and the plaintiff, in that the guarantor received 25 per cent. of the cash payment, and was to receive 25 per cent. of the notes in consideration of his handling the machines and guaranteeing the notes.

The appellant relies on the cases of Hall Furniture Co. v. Crane Manufacturing Co., 169 N.C. 41, 85 S.E. 35, L. R. A. 1915E, 428, and Bland v. Harvester Co., 169 N.C. 418, 86 S.E. 350. Upon analysis of these cases, however, it will be seen that not only do they sustain the position of the plaintiff, in regard to these exceptions, but also with respect to practically all of the other exceptions involved. The case of Furniture Co. v. Manufacturing Co., supra, deals with an entirely different state of facts. There the plaintiff had purchased a secondhand hearse without seeing it. When it came, as the evidence disclosed, the hearse was of no value and worthless; there were no proper wheels, as those sent with it were not of sufficient strength to hold it up; the top was worn out and rotten and a part of the woodwork was decayed and in bad condition. The plaintiff refused to accept it, and brought suit to recover the purchase price, which was paid in advance relying on S. F. Medicine Co. v. Davenport, 163 N.C. 294, 79 S.E. 602. Clearly, therefore, under the principle that the seller shall at least furnish merchantable and salable goods, the plaintiff was entitled to recover fully. Here, however, the defendant took the peanut pickers from the depot and delivered them to the purchasers. They were inspected before any note was signed, and were kept in their possession for several weeks without any effort on their part, or an offer to return them to the seller. The contract provided that they should have one week to make complaints, and notwithstanding this fact, they had kept them in their possession for some time, paid a part of the purchase price, and signed notes for the difference. If the pickers did not come up to the warranty in the printed contract, it was the duty of the plaintiff to return them, or offer to return them, to the defendant within a reasonable time. Parker v. Fenwick, 138 N.C. 209, 50 S.E. 627; Manufacturing Co. v. Lumber Co., 159 N.C. 508, 75 S.E. 718.

In an action for breach of warranty, as to the kind and quality of goods which are sold, there is an implied undertaking that the goods shall be of some value, and reasonably suited to the uses for which the seller knew they were bought, but here it appears that the purchaser actually used them for the purposes for which he purchased them. Bland v. Harvester Co., 169 N.C. 418, 86 S.E. 350, where the court discusses the principle established in Furniture Co. v. Manufacturing Co., supra, and distinguishes it from the principle applied in the Bland Case, which is the one involved in our case. The plaintiff did not waive its contractual rights, by rendering services to the purchasers gratuitously during the season in the effort to give them perfect satisfaction. It was said in Piano Co. v. Kennedy, 152 N.C. 196, 67 S.E. 488:

"We have recognized the principle that there can be no implied warranty of quality in the sale of personal property where there is an express warranty, and that where a party sets up and relies upon a written warranty he is bound by its terms and must comply with them (30 A. & E. p. 199; Main v. Griffin, 141 N.C. 43 ), and the further principle, applied by us in that case, that a failure by the purchaser to comply with the conditions of the warranty is fatal to a recovery for breach of the warranty in an action on it, or where, as in this case, damages for the breach are pleaded as a counterclaim in an action by the seller for the purchase money."

The court stated in Guano Co. v. Live Stock Co., 168 N.C. 447, 84 S.E. 776, L. R. A. 1915D, 875:

"A party who relies upon a written contract of warranty as to quality or description of the property he has purchased is bound by the terms of the warranty. Machine Co. v. McKay, 161 N.C. 586, 77 S.E. 848. He is not only held to the terms of the contract into which he has deliberately entered, but he is not permitted to contradict or vary its terms by parol evidence, as 'the written word must abide' and be considered as the only standard by which to measure the obligations of the respective parties to the agreement, in the absence of fraud or mistake, or other equitable element. 35 Cyc. 379. There are numerous cases decided by this court illustrative of this elementary rule in the law as to written contracts. Moffitt v. Maness, 102 N.C. 457, 9 S.E. 399; Cobb v. Clegg, 137 N.C. 153, 49 S.E. 80; Basnight v. Jobbing Co., 148 N.C. 356, 62 S.E. 420; Walker v. Venters, 148 N.C. 389, 62 S.E. 510; Medicine Co. v. Mizell, 148 N.C. 384, 62 S.E. 511

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