Frick Co. v. Boles
| Decision Date | 14 April 1915 |
| Docket Number | 315. |
| Citation | 84 S.E. 1017,168 N.C. 654 |
| Parties | FRICK CO. v. BOLES. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Surry County; Lyon, Judge.
Action by the Frick Company against J. E. Boles. From the judgment plaintiff appeals. Reversed.
In the absence of allegation or proof that the five days specified in the contract for examination of the machinery bought was not a reasonable time, held error to submit such question to the jury.
This is an action to recover the balance due on notes executed for the purchase price of certain machinery and to subject certain property conveyed to the payment thereof. On the 25th day of June, 1908, the plaintiff, through its agent Dellinger of Salisbury, together with E. A. Griffeth of Winston-Salem, sold to the defendant Boles a portable engine and thresher, the purchase price to be $875. The machine was delivered on the 6th of July, 1908, and the defendant paid cash $100 at the time of the delivery, and executed three notes of $194, all dated July 6, 1908, and due as follows November 1, 1909, November 1, 1910, and one note for $193 due November 1, 1911, and also a deed of trust in which the defendant secured said notes by the conveyance of the engine and attachments and the thresher and attachments for which the notes were executed as purchase money. It was admitted by the plaintiff that, in addition to the $100 cash, the defendant Boles had paid all of the purchase-money notes except $194 due November 1, 1910, and on this note he had paid, April 13, 1911, $27.92, and on May 22, 1911, he had also paid $38.96, and also a further unpaid note for $193 due November 1, 1911.
The material parts of the contract of sale are as follows:
Frick Company makes the following warranty with respect to machinery above mentioned, to wit:
(1) That it is well built, of good material, and when properly operated will, under like conditions, perform as well as any other machinery of the same size and rated capacity.
(2) If after notice as hereinafter provided, and opportunity given to make machinery fulfill terms of warranty, it fails to make said machine or attachment, or defective part thereof, perform according to contract, it agrees to take back such machine or attachment, or defective part, and at its option refund the money, notes, etc., received therefor, or replace the same.
(3) If any part of the machinery proves to be defective within six months after being put into operation, it will furnish a duplicate thereof free, except freight, if said part is properly presented to agent through whom purchased, or at factory; and such defect clearly appears to be due to workmanship or material.
The purchaser agrees as follows, to wit:
(a) If machinery does not fulfill terms of warranty, to give notice in writing to the agent through whom purchased, and by registered letter to Frick Company, Waynesboro, Pa., within five days from first putting same in operation, stating in what respect said machinery fails to perform. If defects reported are such as can be remedied by purchaser, Frick Company may, by letter, suggest remedy. If such purchaser still fails to make same perform, he will immediately notify Frick Company again, at Waynesboro, Pa., by telegram or registered letter, and allow reasonable time to remedy defects, rendering at all times friendly assistance.
(b) To return machinery to place where received, if Frick Company fails, after notice as above, to make same fulfill terms of warranty.
(c) If machinery is used longer than five days from first putting same in operation, without notice of failure to fulfill warranty as required in paragraph (a) above, or if used at all after Frick Company is alleged to have failed to remedy defects, it shall operate as an acceptance of same and as a fulfillment of the terms of warranty.
The jury returned the following verdict:
(1) In what amount is the defendant indebted to the plaintiff? Answer: $160.61, with interest on same from May 22, 1911, and $193, with interest on same from July 6, 1908.
(2) Is the plaintiff entitled to the possession of the property? Answer: Yes.
(3) Did the defendants give notice in writing to the agent through whom he purchased the machinery and by registered letter to the plaintiff at Waynesboro, Pa., within five days from first putting same in operation, stating that the machinery was defective, and in what respect it was defective, and asking the plaintiff to remedy the defect? Answer: No.
(4) If so, did plaintiff, after such notice from defendant, induce the defendant to keep and operate the machinery and try to remedy such defects? Answer: No.
(5) Was five days a reasonable time in which to test the machinery delivered to defendant? Answer: No.
(6) Did the machinery delivered by the plaintiff to defendant come up to the specifications and requirements of the written contract? Answer: No.
(7) What was the difference between the value of the machinery as delivered to defendant, and its value had it come up to contract? Answer: $200.
The plaintiff excepted to the submission to the jury of the fifth, sixth, and seventh issues. The plaintiff moved for judgment on the first, second, third, and fourth issues, which was refused, and it excepted. Judgment was entered upon the verdict, and the plaintiff appealed.
Watson, Buxton & Watson, of Winston-Salem, and Winston & Biggs, of Raleigh, for appellant.
J. H. Folger, of Mt. Airy, for appellee.
There was error in submitting the fifth issue to the jury because there is neither allegation nor proof that the time provided in the contract was not a reasonable time for the examination of the machinery purchased, and the question as to whether five days is a reasonable time in contracts like the one before us does not arise.
On the contrary, the evidence introduced by the defendant shows that he knew of the defects of which he now complains, if they existed on the first day the machinery was operated, and that, instead of its condition...
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