W. F. Main Co v. Griffin-bynum Co
| Decision Date | 03 April 1906 |
| Parties | W. F. MAIN CO. v. GRIFFIN-BYNUM CO. |
| Court | North Carolina Supreme Court |
1. Sams—Contract— Warranty—Construction—Conditions.
Where a written contract for the sale of jewelry provided that defendant waived all right to claim that the goods did not comply with the sample or were not according to order, unless he complied with the terms of the warranty and exchange provision in the contract, by which plaintiff was entitled to notice of any alleged defect in the goods as to quality, and to be given an opportunity to remedy any deficiency before defendant could repudiate the entire contract, the giving of such notice was a condition precedent to defendant's right to recover on a counterclaim for breach of warranty of quality in an action for the price.
[Ed. Note.—For cases in point, see vol. 43, Cent Dig. Sales, §§ 1227, 1228.]
2. Same--Waiver.
Where a written contract for the sale of jewelry required notice of any alleged defects in the quality of the goods and an opportunity to remedy the same before defendant should be entitled to repudiate the contract, and on the delivery of the goods defendant notified plaintiff "goods just received and found all O. K., " and retained possession thereof for more than a year without complaint, any breach of warranty of quality was waived.
[Ed. Note.—For cases in point, see vol. 43, Cent. Dig. Sales, §§ 818, 821.]
Appeal from Superior Court, Moore County; Ferguson, Judge.
Action by the W. F. Main Company against the Grifiin-Bynum Company on a written contract for the sale of certain merchandise. From a judgment in favor of defendant, plaintiff appeals. Reversed.
U. L. Spence, for appellant.
Seawell & Mclver, for appellee.
The Jewelry was sold to defendant under the terms of a written contract, the execution of which was proven and the contract was introduced in evidence. According to the terms of this contract the defendant waived all right to claim that the goods did not come up to sample, or were not according to order, unless defendant complied with the terms of the warranty and exchange in the contract. According to the terms of this obligation the plaintiff was entitled to notice of any alleged defect in the goods as to quality, and to be given an opportunity to remedy any deficiency before defendant could repudiate the entire contract. This is a condition precedent to any action or counterclaim upon the part of the defendant looking to a recovery for a breach of the warranty upon its part. Shepherd v. Larkin, 79 Mo. 264. The contract of sale may fix conditions precedent to the existence of any rights under the warranty, if they are reasonable. A failure by the buyer to comply with such conditions is fatal to his remedy for a breach of the warranty, whether he institutes an action himself or sets up the breach in defense to an action...
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... ... action himself or sets up the breach in defense to an action ... for the purchase price. W. F. Main Co. v. Griffin-Bynum & ... Co., 141 N.C. 43, 53 S.E. 727; note 50 L. R. A. (N. S.) ... 753. But where the warranty of a machine is ... ...
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...were merchantable or fit for their intended use." De Witt v. Berry, 134 U.S. 306, 10 S.Ct. 536, 33 L.Ed. 896. See, also, Main v. Griffin, 141 N.C. 43, 53 S.E. 727; Robinson v. Huffstetler, 165 459, 81 S.E. 753; Lumber Co. v. Machine Co., 136 Ga. 754, 72 S.E. 40. It has been held that an imp......
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...where a party sets up and relies upon a written warranty he is bound by its terms and must comply with them (30 A. & E. p. 199; Main v. Griffin, 141 N.C. 43 ), the further principle, applied by us in that case, that a failure by the purchaser to comply with the conditions of the warranty is......
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