Chase-hackley Piano Co v. Kennedy Et Ux

• Decision Date: 23 March 1910
• Citation: 67 S.E. 488,152 N.C. 196
• Court: North Carolina Supreme Court
• Parties: CHASE-HACKLEY PIANO CO. v. KENNEDY et ux.

67 S.E. 488

152 N.C. 196

CHASE-HACKLEY PIANO CO.

v.KENNEDY et ux.

Supreme Court of North Carolina.

March 23, 1910.

1. Sales (§ 267^*)—Implied Warranty—Reliance on Written Warranty—Effect.

There can be no implied warranty of quality where there is an express warranty.

[Ed. Note.—For other cases, see Sales, Cent. Dig. § 760; Dec. Dig. § 267.*]

2. Sales (§ 429*) — Warranty — Noncompliance with Conditions—Effect as to Recovery for Breach.

A buyer's failure to comply with the conditions of a warranty is fatal to any recovery for a breach.

[Ed. Note.—For other cases, see Sales, Dec. Dig. § 429.*]

3. Sales (§ 441*) — Breach of Warranty — Evidence.

In an action for a balance due on the sale of a piano, evidence held insufficient to show a breach of warranty:

[Ed. Note.—For other cases, see Sales, Dec. Dig. § 441.*]

4. Chattel Mortgages (§ 6*)—What Constitutes—Sales Contract for Piano.

A contract of sale of a piano conditional on payment of the purchase price in full in certain monthly installments, the seller to retain title till paid in full, and having the right to retake the same in case of default in payments, and retain payments made for its use, is essentially a mortgage, and the relation of mortgagor and mortgagee is created by it.

[Ed. Note.—For other cases, see Chattel Mortgages, Cent. Dig. §§ 23-41; Dec. Dig. § 6.*]

5. Chattel Mortgages (§ 6*) — Sales Contract for Piano—Default in Payments— Rights as to Interest or Rent.

A provision in a sales contract for a piano, which is essentially a mortgage, that, in case of failure to pay for the instrument in full, all payments made might be retained by the seller for its use, is void, and, though it is entitled to interest, it has no right to rent in case of the buyer's default.

[Ed. Note.—For other cases, see Chattel Mortgages, Dec. Dig. § 6.*]

G. Chattel Mortgages (§ 283*)—Sales Contract for Piano—Decree on Foreclosure. In case of default in the monthly payments due under a sales contract for a piano, which was essentially a mortgage, a decree of foreclosure should require defendants to pay the debt, interest, and costs, and, if not paid, direct a sale of the piano to pay off the same, including all costs, the residue, if any, to be paid to defendants.

[Ed. Note.—For other cases, see Chattel Mortgages, Dec. Dig. § 283.*]

Appeal from Superior Court, Lenoir County; O. H. Allen, Judge.

Action by the Chase-Hackley Piano Company against C. E. Kennedy and wife. From a judgment for defendants, plaintiff appeals. Reversed.

The contract for the sale of the piano in question in this case provided for the payment therefor in certain monthly installments, and till payment in full the piano company were to retain title thereto, and, in case of default in payments, were to have the right to retake possession and retain payments made as compensation for its use. The purchaser further agreed not to remove it from his premises without the company's consent, or part with its possession. On payment in full, it was to become his property, but loss in case of fire was to be borne by him, and he agreed to keep it insured for the benefit of the company, as their interest might appear, and, in default of his so doing, the company was given the right to insure it and retain title till he paid the premium, with interest.

Action to recover balance due on a contract for the sale of a piano. The defendants pleaded a counterclaim based upon an alleged breach of a contract of warranty in writing, as follows: "This is to certify that piano-forte style 'S.' mahog. No. 29997 is hereby warranted for the term of five years from the date of its manufacture, and should the instrument with proper care and use prove defective in material or workmanship (the effects of extreme heat, cold or dampness excepted), we agree to put the same in good repair at our manufactory, or replace it with another of the same style, reserving to ourselves the right to elect which we will do."

These issues were submitted:

"(1) What amount is due the plaintiff upon the contract price? Answer: $111.80.

"(2) What damage, if any, are the defendants entitled to recover against the plaintiff? Answer: $150.00.

"(3) What was the rental value of the piano? Answer: $1.50 per month.

"(4) Is the plaintiff a corporation? Answer: Yes."

From judgment rendered, plaintiff appealed.

G. V. Cowper and J. P. Frizzelle, for appellant.

T. C. Wooten and Aycock & Winston, for appellees.

BROWN, J. Although there are 23 exceptions in the record, all relating to the second issue, it is apparent from the briefs that there is only one contention presented in the record which we need consider. The ground upon which plaintiff relies to defeat the defendants' counterclaim is that under the terms of the warranty, before they can successfully claim damages for any breach thereof and as a condition precedent, it must appear that defendants have given the plaintiff notice of the alleged breach of warranty and defect in the instrument, and that the plaintiff has had a reasonable opportunity to comply with the terms of the warranty. It is contended that in such respect the defendants have failed to perform the stipulations of the contract upon their part. 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 Am. & Eng. p. 199; Main v. Griffin, 141 N. C. 43, 53 S. E. 727. We recognize 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.

There is evidence tending to prove that the piano was sold and delivered to defendants under a sales contract dated May 22, 1903, for $335, that defendants made monthly payments thereon up to February 8, 1907, and that there Is due the sum of $111.80. It is further in evidence that the defendants kept the piano and used it continuously for four years without notifying plaintiffs of any defects in it. It is insisted that such neglect constitutes a waiver upon the part of defendants of any rights under the warranty. It has been said, as contended by defendants, that, when one purchases goods under a warranty, they need not be returned to the warrantor as soon as the defect is found, unless the contract expressly stipulates to that effect....