Nichols & Shepard Co. v. Bryeans

• Decision Date: 27 February 1906
• Citation: 93 S.W. 827,116 Mo. App. 693
• Parties: NICHOLS & SHEPARD CO. v. BRYEANS et al.
• Court: Missouri Court of Appeals

93 S.W. 827

116 Mo. App. 693

NICHOLS & SHEPARD CO. v. BRYEANS et al.

St. Louis Court of Appeals. Missouri.

February 27, 1906.

SALES—WARRANTY—NOTICE OF DEFECTS—REQUIREMENTS OF CONTRACT—WAIVER.

Where a contract for the sale of a machine warranted the machine to work satisfactorily, and provided that if it did not, notice should be given the seller by registered letter, a response by the seller to an unregistered notification of defects and an attempt through its agent to remedy the defects was a waiver of the requirement as to registration.

Appeal from Circuit Court, Scott County: Henry C. Riley, Judge.

Action by the Nichols & Shepard Company against W. Bryeans and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Russell & Deal, for appellant. H. C. O'Bryan and Marsh Arnold, for respondents.

GOODE, J.

This is an action on a promissory note given for a part of the purchase price of some machinery, which is designated in the written contract of purchase as "one belted Red River Special separator, a Satley stacker, and one Nichols & Shepard bagger and weigher." According to the contract, the machinery, with the usual fixtures and extras which accompany such machines, was to be shipped for the defendants "to or in care of V. Heiserer at Morley or Blodgett on or about May 20, 1903." The machinery did not get to Morley until June 20th. Certain warranties material to the issues are contained in the contract. It is provided that the separator, stacker, and bagger and weigher, or other machinery attachments mentioned in the contract, were sold as separate and distinct machines, at separate and distinct prices, and, further, that each of said machines, properly managed, was "capable of doing more and better work than any other machine made of like size and proportion, working under the same conditions and on the same job." The contract provided that if those warranties were not met the purchasers should, within five days from the first use of the machinery, give written notice to Nichols & Shephard Company at Battle Creek, Mich., by registered letter, and also notice to the local dealer from whom the purchased property was received, stating how and wherein it failed to fill the warranties; that thereupon, a reasonable time should be allowed the company to get to the machine with its workmen and remedy the defects; but, if after giving such notice and opportunity, the machine could not be made to fill the warranties, it should be returned to Nichols & Shepard Company, the place where it was received. The contract was in all material respects similar to the one involved in the case of Nichols-Shepard Company v. Rhoadman (Mo. App.) 87 S. W. 62. The separator and stacker were shipped to Heiserer, plaintiff's local agent at Morley, Mo., but the "bagger and weigher" was never delivered. The machine was set up and put to use by the defendants, and the same day, or the day after, defendants executed the note in suit, and the other notes given for the purchase price. Practically all the testimony on the question of whether the machinery complied with the warranties showed an utter failure to comply. The separator would not work at all, and the belting which ran it could not be kept on the pulleys, the witnesses said....