J. I. Case Threshing MacHine Co. v. McClamrock

67 S.E. 991, 152 N.C. 405, 1910 N.C. LEXIS 291

• Court: Supreme Court of North Carolina
• Decided: April 27, 1910
• Status: Published

Opinion

Manning, J.,

after stating the case: The only exception presented by the record is the correctness of his Honor’s ruling. We concur in his ruling. The defendants admitted the execution of the notes sued upon and the chattel mortgage given to secure their payment. The execution by them of the contract, pursuant to which the notes and mortgage were executed, was likewise admitted. .This contract expressly stipulated that the machine purchased was a second-hand machine, and was not warranted. It was entirely competent for the parties to so stipulate in their contract. The defendants retained a copy of the contract, and it expressly warned them of the limitation of the power of an agent of plaintiff to vary its terms by parol. The record states that both the quality of the machine as secondhand and the limitation upon the agent’s authority to vary the terms were printed in bold type. Apart from,this, the defendants could read, and no trick or device'was resorted to to prevent them from reading it.

It cannot admit of doubt that personal property may be sold with or without warranty, and that from an express stipulation that the property is not warranted a warranty will not be implied. Woodridge v. Brown, 149 N. C., 299. To sustain the defense of defendants, that the agent said the machine was a new machine and not a second-hand machine, and that its quality was good, would be, in terms, to contradict the express stipulations of the written contract by the parol promises of an agent expressly unauthorized to make any change or alteration,, and in particulars about which the written contract speaks in unambiguous terms. Woodson v. Beck, 151 N. C., 144; Walker v. Cooper, 150 N. C., 128; Walker v. Venters, 148 N. C., 388. In Woodbridge v. Brown, supra, tbis Court beld (see beadnote' 4) : “In tbe absence of warranty of tbe grade of merchandise sold and delivered, evidence that tbe merchandise was of inferior quality is inadmissible, tbougb tbe purchaser could not have ascertained tbat tbe quality was inferior except in its use”; and tbat tbis is true, tbougb tbe seller knew tbe purpose for which it was to be used. Dickson v. Jordan, 33 N. C., 166.

Tbe fraud and misrepresentation alleged in tbe answer were tbat “plaintiff represented said feeder to be a new one and suitable to work on tbe threshing machine of defendants, and it would warrant tbe same,” and tbat these representations were not true. We have examined tbe evidence and we do not think it sustains tbe allegations, or tbat, viewed in its most favorable aspect for tbe defendants, it supported tbe allegations. After tbe self-feeder bad been attached to tbe threshing machine and had been operated, defendants not only expressed their satisfaction, but signed tbe “satisfaction slip” set out in tbe preceding statement of tbe case.

Tbe evidence failing altogether to support the defense, it was proper for bis Honor to instruct tbe jury as be did. Woodridge v. Brown, supra. In addition, tbe contract contained tbis express stipulation: “Acceptance by purchaser is a full waiver of all claims arising from any cause.” Having carefully examined tbe entire record and the authorities cited, we discover no error in tbe ruling of bis Honor, to which exception was taken, and tbe judgment is affirmed.

No error.