McCormick Harvesting Mach. Co. v. Allison

• Decision Date: 30 October 1902
• Citation: 42 S.E. 778,116 Ga. 445
• Parties: McCORMICK HARVESTING MACH. CO. v. ALLISON et al.
• Court: Georgia Supreme Court

42 S.E. 778

116 Ga. 445

McCORMICK HARVESTING MACH. CO. v. ALLISON et al.

Supreme Court of Georgia

October 30, 1902

Syllabus by the Court.

1. Where a written contract for the sale of a machine specified the warranties undertaken by the seller, and stipulated that no warranties other than those expressly stated in the contract should be binding on him, he was not responsible for an additional warranty subsequently made by his agent; and upon the trial of an action brought by the seller against the purchaser for the price of the machine, evidence of such warranty made by the agent was inadmissible.

2. Where such a contract stipulated that: "If upon one day's trial the machine should not work well, the purchaser shall give immediate notice to [the seller and his agent], and allow time to send a person to put it in order. If it cannot then be made to work well, the purchaser shall return it at once to the agent of whom he received it, and all cash and notes received in settlement will be refunded. *** Failure to *** return the machine as agreed shall be deemed an acceptance of the machine by the purchaser,"-- held, that upon the failure of the machine to work well, and failure of the seller, upon proper notice, to have it put in order, a notice by the purchaser to the agent of the seller that the machine was held subject to the seller's order was not a compliance with the terms of the contract, and did not relieve the purchaser from liability for the price of the machine, when it did not appear that the seller or his agent ever took possession or control of the machine in pursuance of such notice.

Error from superior court, Gordon county; A. W. Fite, Judge.

Action by the McCormick Harvesting Machine Company against Nathan Allison and another. Judgment for defendants, and plaintiff brings error. Reversed.

Starr & Erwin, for plaintiff in error.

Harkins & Dodd, for defendants in error.

FISH J.

Suit was brought in a justice's court by the McCormick Harvesting Machine Company against Nathan Allison and Frank Walraven on one of a series of notes given by the defendants to the plaintiff for the purchase price of a corn binder. Upon a trial by jury, a verdict was rendered for the defendants. Plaintiff sued out a certiorari, and to a judgment of the superior court overruling the same it excepted. It was in evidence before the jury that the defendants signed a printed order for the machine, directed to the plaintiff. This order contained the following agreement: "Machine is to be warranted, as per warranty on the back of this order, without condition or erasure, a copy of which *** we have this day received and accepted." On the back of the order was the following "Machine Warranty. This machine is warranted to be well made, of good material, and durable with proper care. If upon one day's trial the machine should not work well, the purchaser shall give immediate notice to said McCormick Harvesting Machine Co. and their agent, and allow time to send a person to put it in order. If it cannot then be made to work well, the purchaser shall return it at once to the agent of whom he received it, and all cash and notes received in settlement will be refunded. Continuous use of the machine, or...