Appeal
from District Court, Fifth District; Hon. Joshua Greenwood
Judge.
Action
by the Consolidated Wagon & Machine Company, a corporation
against Fred Barben and others, partners.
Judgment
for defendants. Plaintiff appeals.
REVERSED and remanded, with directions.
W. B
Higgins and Stewart, Bowman, Morris & Callister for
appellant.
APPELLANT'S
POINTS.
Where
the parties themselves stipulate what the result of a breach
of a particular contract shall be, the courts will enforce
the stipulation. (Foxley v. Rich, 35 Ut. 162, 179;
King v. Towsley, 64 Iowa 75, 19 N.W. 859.)
In the
case at bar the defendants cannot defend on the ground that
the machinery did not fulfill the warranty unless they allege
and can show compliance with the terms and stipulations
thereof. This they have failed to do. (Murphy v. Russell
et al., 67 P. 421 [Ida.], 423-424.)
Parties
may, by the express terms of their contracts of sale, make a
failure to give notice of defects to the seller within the
stipulated time, conclusive evidence that the warranty is
fulfilled to the satisfaction of the purchaser. (Murphy
v. Russell, 67 P. 421 [Ida.], 424; Furneaux v.
Esterly, 36 Kan. 539, 13 P. 824; Beasley v. Huyett &
S. Mfg. Co., 92 Ga. 273; Case Threshing Machine Co.
v. Ebbighausen, 92 N.W. [N. D.] 826; Russell v.
Murdock, 79 Iowa 101, 44 N.W. 237; Fahey v. Machine
Co., 55 N.W. [N. D.] 580; Machine Co. v. Hartman, 53
N.W. 566 [Neb.].)
J. A.
Melville for respondents.
RESPONDENTS'
POINTS.
A
waiver by the party for whose benefit or protection notice
should be given is equivalent to notice and dispenses with
its necessity. (29 Cyc. 1117; Smyser v. Fair, 73
Kan. 773; Taunton Bk. v. Richardson, 5 Pick. 436;
People v. Albright, 23 How. Pr. 306; Wood v.
Stewart, 7 Vt. 149.) An allegation of actual notice is
supported by proof of waiver of notice, since the latter is
equivalent to the former. (29 Cyc. 1125.) If there is a
mutual departure from the terms of a contract, and afterwards
one of the parties concludes thenceforth to stand on the
letter of the contract, he must notify the other. (9 Cyc.
617; Eaves v. Cherokee Iron Co., 73 Ga. 459.) A
party to a contract may dispense with a condition in his
favor, and when this is done, it is the same as though the
thing dispensed with had been done. (Mining Co. v. Mining
Co., 5 Ut. 624.)
FRICK,
J. STRAUP, C. J., and McCARTY, J., concur.
OPINION
FRICK, J.
The
plaintiff, a Utah corporation, brought this action to recover
the sum of $ 1,000 upon a contract of sale entered into
between it and the defendants. The $ 1,000 was originally
payable in three installments, as follows: $ 334 on December
1, 1912; $ 333 on December 1, 1913, and $ 333 December 1,
1914. The action was commenced December 1, 1913. It was,
however, alleged in the complaint:
"That
by the terms of said contract if any payment provided for
therein is not made at the time provided for, the whole of
said $ 1,000 shall then and there become due."
It was
further alleged that the defendants had failed to make the
payment which fell due on December 1, 1912, or any part
thereof. The defendants appeared and defended the action.
They alleged in their answer that the $ 1,000 sued for
constituted the purchase price of a certain threshing
machine, horse power and attachments, all of which machinery,
they alleged, was warranted by the plaintiff; that said
machinery had failed to fulfill the warranty in certain
particulars, and hence defendants were not liable upon the
contract. The contract of purchase was in
writing, was dated July 11, 1912, and was signed by both
parties thereto. After describing the machinery purchased and
the terms and conditions of payment, the contract also
contained the following provision:
"The
company [plaintiff] makes this sale subject to the warranty
written on the reverse side of this contract, and it is
expressly agreed and fully understood by all of the parties
hereto that no verbal agreement, warranty, guaranty or
representation whatever is binding on either or any of the
parties hereto or otherwise except as it is written on the
back hereof. This written contract contains all the terms of
this order, purchase and sale."
The
following is the warranty referred to and relied on by the
defendants:
"We
guarantee farm implements and spring work for one year from
date of sale, and automobiles and all farm machinery and
agricultural implements for the first season. This warranty
is against defective materials and workmanship. Parts claimed
to be defective must be presented for inspection at our
office at Salt Lake City, Utah, and if pronounced defective
by us, duplicate parts only will be furnished free f. o. b.
factory. We do not warrant tires, springs or paint, neither
will we pay repair bills.
"It
is further agreed that a defect, within the meaning of this
warranty, and any part of the machine, attachment or article
shall not, when such part is capable of being removed and
repaired or replaced, operate to condemn said machine,
attachment or article.
"It
is warranted that the machinery and goods hereby sold are
made of good material, and durable with good care to do as
good work, under the same conditions, as any made in the
United States of equal size and rated capacity. If properly
operated by competent persons with sufficient steam,
gasoline, horse or other power, as the case may be, and the
printed rules and directions of this company and of the
manufacturers are intelligently followed. If by so doing,
after trial of five days by the second parties, said
machinery or other articles shall fail to fulfill the
warranty, written notice thereof shall at once
be given to the company and also to the agent through whom
received, stating in what parts and wherein it fails to
fulfill the warranty, and a reasonable time shall be given to
said company to send a competent person to remedy the
difficulty, the second parties rendering necessary and
friendly assistance, said company reserving the right to
replace any defective part or parts, and if then the
machinery cannot be made to fill the warranty, the part that
fails is to be returned by the second parties free of charge
to the place where received and the company notified thereof,
and at the company's option, another substituted therefor
that shall fill the warranty, or the notes and money for such
part immediately returned and the contract rescinded to that
extent and no further claim made on the company. Failure so
to make such trial or to give such notices in any respect
shall be conclusive evidence of due fulfillment of warranty
on the part of said company and that the machinery is
satisfactory to the second parties and the company shall be
released from all liability under the warranty. Any
assistance rendered by the company, its agents or servants in
operating said machinery or in remedying any actual or
alleged defects, either before or after the five days'
trial, shall in no case be deemed any waiver of, or excuse
for any failure of the second parties to fully perform the
conditions of this warranty, when at the request of the
second parties a man is sent to operate the above machinery,
which is found to have been carelessly or improperly handled,
said company putting the same in working order again, the
expense incurred by said company shall be paid by said second
parties. If any part of the machinery fails from defect of
material while this warranty is in force, the company has the
option to repair or replace the same on presentation of the
defective part or parts, but deficiency or defects in any
piece shall not condemn other parts, and the second parties
expressly waive all claim for damages on account of the
nonfulfillment of said warranty by any of the described
machinery. A failure to live up to any of the provisions
hereof or to make any payment as heretofore provided in this
contract or to comply with any of the conditions of this
warranty on the part of the second parties or any abuse,
misuse, unnecessary exposures of machinery or
waste committed or suffered by the second parties, or
carelessness on their part or inefficiency in handling of the
said machinery discharges the company from all liability
whatever."
The
particulars in which the machinery was alleged to have been
defective are set forth in the answer as follows:
"Defendants further allege that defective materials and
workmanship was used in the construction of the said
threshing machine, consisting of a separator, horse power and
attachment, referred to in said contract, attached to
plaintiff's complaint; that the said machinery was not
made of good materials; that the workmanship in the same was
poor and inferior, and said machinery would not do as good
work under same conditions as any made in the United States
of equal size and rated capacity, although it was operated by
competent persons with sufficient horse power, that being the
power by which it was constructed to have been operated, and
although the printed rules and directions of the plaintiff
company and manufacturers were intelligently followed.
"Defendants
further allege that the fundamental construction and general
plan and the operation of the said machinery was
fundamentally wrong in this: The gearing of said machinery
and tension of the same and the propelling power was too low
that it was impossible by the application of the necessary
horse power for its operation to get up a reasonable speed or
tension, or to get the machinery under proper motion for
threshing grain, and as a result the grain threshed was not
properly cleaned, much of it was wasted, and it was
unreasonably chopped up, thereby greatly...
