OPINION
CRUMPACKER, J.
Campbell
and Hubbard sued Wray upon a written contract for the
purchase of a "Whitely Binder and Truck" according
to the tenor following: "Messrs. Campbell and
Hubbard, Bedford, Ind.:
"May
21, 1891.--You are hereby authorized to procure for me one
Whitely binder and truck for same, to be shipped to Zelma by
the 10th day of June, 1891, for which I agree to pay you one
hundred and thirty dollars, or in lieu of paying cash, to
then execute notes payable as follows:
One-half September 1, 1891; one-half September 1, 1892,
including interest at the rate of 6 % (six per cent.) per
annum after September next; payable at Stone City Bank,
Bedford, Indiana. Subject to the provisions of the
manufacturers' printed warranty thereon, a copy of which
is this day received. PRESTON WRAY."
The
defendants answered in two paragraphs, the first of which was
the general denial, and the second set out the warranty and
alleged that the machine, after having been fairly tested,
failed to fulfill its requirements, in that it failed to cut
all of the grain, but left upon the ground and wasted large
quantities of it, and failed to bind grain properly,
specifically stating the particulars in which it was
deficient. It was also alleged in this paragraph that the
defendant duly notified plaintiffs of the failure of said
machine to perform the conditions of the warranty, and they
promised to adjust and repair it, but entirely failed to do
so or to attempt it; that the machine was wholly unfit for
use and was worthless.
The
warranty is as follows:
"The
Whitely Binder is guaranteed to be well made, of best
material and workmanship, and when properly set up, adjusted
and operated in accordance with our directions, will do as
good work as any other binder in the market, and this
warranty is given upon the following conditions: If said
machine does not work successfully under the management of
the purchaser and local agent, notice must be given to us by
letter or telegram, addressed to Amos Whitely & Co.,
Springfield, Ohio, advising us fully as to the name and
residence of the purchaser, who, together with the local
agent, will furnish the necessary facilities, and aid in
testing the machine in the presence and under the direction
of a competent person, to be designated and sent by us for
that purpose, after receiving such notice; and if the machine
does good work under his direction, it shall be kept by the
purchaser, and continued use shall be considered conclusive
evidence that it fills the warranty. But if, under the
direction of the person designated and sent
by us for that purpose (after receiving such notice), the
machine does not work as above warranted, it may be returned
and the payment will be refunded.
"WARRANTY
ON THE WHITELY BINDER.
"This
warranty is only valid and binding upon Amos Whitely &
Co. where the sale of the machine is evidenced by the
purchaser's order given therefor, subject to the
provisions of this warranty, and then only when countersigned
by the agent and delivered to the purchaser without
alteration, interlining or erasure.
"(Signed)
AMOS WHITELY & CO.
"(Countersigned)
CAMPBELL & HUBBARD."
Endorsed
upon the back of the warranty was the following:
"This
contract is made this way: If Amos Whitely has made an
assignment or broke up, the...
