Long, J.
This action was brought to recover the, purchase price of a binder. The order for the binder is set out in the declaration, and is as follows:
“ ORDER POR OSBORNE HARVESTING MACHINE.
“Dated at Concord, July 9, 1892.
“ Messrs. D. M. Osborne & Co.,
“'Chicago, 111.:
“ I have this day ordered of Jacob Eosenbrook, your [248]*248agent, one of your machines, described as ‘Number New Binder, 6 feet right-hand rear gear/ to be delivered at Concord, Jackson county, for which I agree to pay the sum of $105, and freight and charges from Chicago, 111., in manner as follows:
“An approved note, due October 1, 1892, $52.50, with interest at - per cent.
“An approved note, due October 1, 1893, $52.50, with interest at 7 per cent. Said notes to be made payable to the order of D. M. Osborne & Co., and to bear interest from the date of the delivery of the machine.
“ This machine is hereby purchased and sold subject to the following warranty and agreement, and no one has any authority to add too, abridge, or change in any manner:
“ ‘ All our machines are warranted to be well built, of good material, and capable of cutting, if properly managed, from 10 to 15 acres per day. If, on starting a machine, it should in any way prove defective, and not work well, the purchaser shall give prompt notice to the agent of whom he purchased it, and allow time for a person to be sent to put it in order. If it cannot then be made to do good work, the defective part will be replaced, or the machine received back from the purchaser at the office of the agent from whom it was purchased, and the money or notes returned. Keeping the machine during harvest, whether kept in use or not, shall be deemed conclusive evidence that the machine fills the warranty/
“This order is signed by me in duplicate.
“Harvey Baker.
“ Order taken by Jacob Bosenbrook, Agent.”
The defendant pleaded the general issue, and gave notice—
1. That the machine did not fill the warranty.
2. That, at the solicitation of the agent of the plaintiff, he took the machine on trial, with the express understanding and agreement of the plaintiff that if, upon trial, said machine did not work satisfactorily to the defendant, he should not keep or purchase it, and that the machine, after a fair trial, did not work well, nor satisfactorily to defendant, and that consequently he did not purchase said machine.
The testimony of plaintiff showed that the machine was delivered to defendant about a week after the order was [249]*249given; that defendant commenced working it; that plaintiff’s ■agent called there two or three times while it was in use, bnt defendant finally refused to settle for it, claiming that it did not work satisfactorily. It is conceded that some parts of the machine were broken, but it is contended that plaintiff’s agent went there and fixed the machine up; that it was not returned before harvest, but was kept during the whole harvest. On the part of the defendant, it is contended that the machine would not do good work; that it was not properly constructed; that, after it was discovered that the machine was defective, defendant informed plaintiff’s agent of the fact, and that he would not keep it; that a new arrangement was then entered into between plaintiff’s agent and defendant, which was, substantially, that the defendant should go on, and try the machine further, and, if it did not then work satisfactorily, that it was to be plaintiff’s machine, and not defendant’s; that this is the reason why defendant kept the machine during the .harvest. This arrangement was denied by plaintiff.
The court charged the jury substantially that if the machine did come up to the warranty they must find for plaintiff; that if, on the other hand, the machine did not comply with the warranty, and plaintiff’s agent told ■defendant to go on and use it, and if it did not work all right it was the plaintiff’s machine, and not the defendant’s, and if defendant, in reliance upon this arrangement, did not return the machine as provided in the contract, but retained and used it as directed by plaintiff’s agent, they should regard that provision of the contract as waived by plaintiff, and defendant would not be precluded from insisting upon the breach of the warranty by his failure to return the machine as provided by the contract. The jury returned a verdict in favor of defendant.
It is contended that plaintiff’s agent had no power or authority to waive the terms of the written contract, and [250]*250that, though the jury might find that the subsequent-arrangement was made as claimed by defendant, yet, he having kept the machine over the harvest, he was bound •to settle for it as provided in the contract. We think the court below was correct in submitting the case to the jury, and upon the question of the second arrangement. The agent with whom the defendant dealt was Jacob Rosenbrook. It was with him that the second arrangement was made. The jury, by their verdict, have settled the issues in favor of defendant:
1. That the machine did not comply with the warranty,
2. That defendant, when he ascertained this fact, refused to keep it under the contract.
3. That Rosenbrook then persuaded defendant to retain it, and advised him that he might do so, and if he kept it beyond the harvest it would be all right, and the machine would be the plaintiff’s, and not defendant’s.
It must be conceded that if it be true that the machine did not comply with the warranty, and that this was ascertained by the defendant before the second arrangement was made, he had the right at that time, under the terms of his contract, to return the machine to Rosenbrook. In order to avoid this, Mr. Rosenbrook made a new arrangement with defendant. While the court below may not have been correct in saying that this was a waiver of the stipulation in the contract as to time of return, yet the plaintiff was in no manner injured by that ruling. The contract provided that no one had any authority to add to, abridge, or change the warranty and agreement. The defendant was not asking any change or abridgement of the warranty or agreement. He proposed to comply with the contract, and refused to keep the machine, as it did not do good work. This surrender the defendant had a right to make at that time, and, that it was not made, Mr. Rosenbrook is responsible for. He was the general agent of the company. And we regard_ the new arrange[251]*251ment as the one tinder which the machine was held, instead . of the written order. If the machine had been actually delivered over to Rosenbrook, it could not be contended but that would have ended the controversy. The statement that defendant would not keep it and settle for it was tantamount to a return, as it was not the fault, of defendant that it was not returned. The machine being thus held under the new arrangement, the defendant is. not bound to pay for it because he held it over the harvest.
In Snody v. Shier, 88 Mich.
Free access — add to your briefcase to read the full text and ask questions with AI
Long, J.
This action was brought to recover the, purchase price of a binder. The order for the binder is set out in the declaration, and is as follows:
“ ORDER POR OSBORNE HARVESTING MACHINE.
“Dated at Concord, July 9, 1892.
“ Messrs. D. M. Osborne & Co.,
“'Chicago, 111.:
“ I have this day ordered of Jacob Eosenbrook, your [248]*248agent, one of your machines, described as ‘Number New Binder, 6 feet right-hand rear gear/ to be delivered at Concord, Jackson county, for which I agree to pay the sum of $105, and freight and charges from Chicago, 111., in manner as follows:
“An approved note, due October 1, 1892, $52.50, with interest at - per cent.
“An approved note, due October 1, 1893, $52.50, with interest at 7 per cent. Said notes to be made payable to the order of D. M. Osborne & Co., and to bear interest from the date of the delivery of the machine.
“ This machine is hereby purchased and sold subject to the following warranty and agreement, and no one has any authority to add too, abridge, or change in any manner:
“ ‘ All our machines are warranted to be well built, of good material, and capable of cutting, if properly managed, from 10 to 15 acres per day. If, on starting a machine, it should in any way prove defective, and not work well, the purchaser shall give prompt notice to the agent of whom he purchased it, and allow time for a person to be sent to put it in order. If it cannot then be made to do good work, the defective part will be replaced, or the machine received back from the purchaser at the office of the agent from whom it was purchased, and the money or notes returned. Keeping the machine during harvest, whether kept in use or not, shall be deemed conclusive evidence that the machine fills the warranty/
“This order is signed by me in duplicate.
“Harvey Baker.
“ Order taken by Jacob Bosenbrook, Agent.”
The defendant pleaded the general issue, and gave notice—
1. That the machine did not fill the warranty.
2. That, at the solicitation of the agent of the plaintiff, he took the machine on trial, with the express understanding and agreement of the plaintiff that if, upon trial, said machine did not work satisfactorily to the defendant, he should not keep or purchase it, and that the machine, after a fair trial, did not work well, nor satisfactorily to defendant, and that consequently he did not purchase said machine.
The testimony of plaintiff showed that the machine was delivered to defendant about a week after the order was [249]*249given; that defendant commenced working it; that plaintiff’s ■agent called there two or three times while it was in use, bnt defendant finally refused to settle for it, claiming that it did not work satisfactorily. It is conceded that some parts of the machine were broken, but it is contended that plaintiff’s agent went there and fixed the machine up; that it was not returned before harvest, but was kept during the whole harvest. On the part of the defendant, it is contended that the machine would not do good work; that it was not properly constructed; that, after it was discovered that the machine was defective, defendant informed plaintiff’s agent of the fact, and that he would not keep it; that a new arrangement was then entered into between plaintiff’s agent and defendant, which was, substantially, that the defendant should go on, and try the machine further, and, if it did not then work satisfactorily, that it was to be plaintiff’s machine, and not defendant’s; that this is the reason why defendant kept the machine during the .harvest. This arrangement was denied by plaintiff.
The court charged the jury substantially that if the machine did come up to the warranty they must find for plaintiff; that if, on the other hand, the machine did not comply with the warranty, and plaintiff’s agent told ■defendant to go on and use it, and if it did not work all right it was the plaintiff’s machine, and not the defendant’s, and if defendant, in reliance upon this arrangement, did not return the machine as provided in the contract, but retained and used it as directed by plaintiff’s agent, they should regard that provision of the contract as waived by plaintiff, and defendant would not be precluded from insisting upon the breach of the warranty by his failure to return the machine as provided by the contract. The jury returned a verdict in favor of defendant.
It is contended that plaintiff’s agent had no power or authority to waive the terms of the written contract, and [250]*250that, though the jury might find that the subsequent-arrangement was made as claimed by defendant, yet, he having kept the machine over the harvest, he was bound •to settle for it as provided in the contract. We think the court below was correct in submitting the case to the jury, and upon the question of the second arrangement. The agent with whom the defendant dealt was Jacob Rosenbrook. It was with him that the second arrangement was made. The jury, by their verdict, have settled the issues in favor of defendant:
1. That the machine did not comply with the warranty,
2. That defendant, when he ascertained this fact, refused to keep it under the contract.
3. That Rosenbrook then persuaded defendant to retain it, and advised him that he might do so, and if he kept it beyond the harvest it would be all right, and the machine would be the plaintiff’s, and not defendant’s.
It must be conceded that if it be true that the machine did not comply with the warranty, and that this was ascertained by the defendant before the second arrangement was made, he had the right at that time, under the terms of his contract, to return the machine to Rosenbrook. In order to avoid this, Mr. Rosenbrook made a new arrangement with defendant. While the court below may not have been correct in saying that this was a waiver of the stipulation in the contract as to time of return, yet the plaintiff was in no manner injured by that ruling. The contract provided that no one had any authority to add to, abridge, or change the warranty and agreement. The defendant was not asking any change or abridgement of the warranty or agreement. He proposed to comply with the contract, and refused to keep the machine, as it did not do good work. This surrender the defendant had a right to make at that time, and, that it was not made, Mr. Rosenbrook is responsible for. He was the general agent of the company. And we regard_ the new arrange[251]*251ment as the one tinder which the machine was held, instead . of the written order. If the machine had been actually delivered over to Rosenbrook, it could not be contended but that would have ended the controversy. The statement that defendant would not keep it and settle for it was tantamount to a return, as it was not the fault, of defendant that it was not returned. The machine being thus held under the new arrangement, the defendant is. not bound to pay for it because he held it over the harvest.
In Snody v. Shier, 88 Mich. 304, the new arrangement, made with the plaintiffs agent was treated and held by the trial court to be a waiver of the provisions of the contract, which stipulated that “keeping the machine during harvest, whether kept in use or not, without giving-notice as above, will be deemed conclusive evidence that, the machine' fills the warranty;” and it was also held by the court that, under all the dealings with the plaintiffs, agent and the plaintiff himself, the sale was rescinded. That contract also contained the clause: “All verbal contracts must conform to the above warranty.” The judgment of the court below was affirmed.
The first question here presented is whether the machine-was so defective as not to comply with the warranty. If' so, defendant had, by the terms of the contract, the right, to turn it back to Rosenbrook. The jury, by their verdict, must have found that it was. Under the second arrangement, there can be no doubt of the right to return it after harvest, and that the retaining of it during the harvest, would not make it the property of defendant.
Judgment affirmed.
McGrath, C. J., and Montgomery, J., concurred with Long, J.