Miller v. Nichols

5 Neb. 478

• Court: Nebraska Supreme Court
• Decided: January 15, 1877
• Status: Published

Opinion

Lake, Oh. J.

In principle this case is not distinguishable from that of Nichols, Shephard & Co. v. Hail, 4 Neb., 210, in which this court held that, “ when in a contract of warranty there are conditions precedent to be observed and performed by a purchaser, he must show a fair and reasonable compliance with the terms of the contract on his part or he will not be permitted to enforce it against the warrantor.”

In the case now before us the terms of the contract are undisputed. It is in every particular conditional, and covers every conceivable defect that could exist in the machine.

As to the general adaptability of this threshing machine to do all the work that was expected of it, and to do it well, there is no complaint. In these respects it answered fully the requirements of the warranty. The only substantial defect being in one of the timbers on which the horse-power rested.

The testimony shows that this timber gave way so as to need repairing in January, 1873, after having been run steadily some five months; and it was continued in service until the following September, when it was cast aside. The defect was caused by a check, or split in the timber, which in the manufacture had been so brought together and secured with iron bolts and paint as not to be observed until it finally gave out.

This defect was covered by the warranty, and Nichols, Shephard & Co. would have been required to make it good had it been properly brought to their notice. That portion of the contract bearing upon this point, is in these words, viz: “Also, that if any part of said machine, except the levers or belting, fails during this year in consequence of any defect in the material of said part, if the purchasers shall have observed the printed or written directions applicable to the management of such part, Nichols, Shephard & Co. are to furnish a duplicate of said part free of charge, except freight, after presentation of the defective piece, clearly showing a flaw in material, at the factory, or to the dealer of whom the machine was bought, at any time within one year.”

Such being the condition of the warranty, in order to show a liability under it, it is not enough to prove merely that a part of the machine was defective, but in addition to that fact it should appear that the defective piece was presented, either to the manufacturers themselves, or to their agent from whom the machine was purchased. But there is nothing in the record tending to show that there was any attempt on the part of the plaintiffs in error to comply with this condition, and having wholly failed in this respect, they are in no situation to complain of the defendants in error.

The attempt to establish the existence of fraud on the part of Nichols, Shephard & Co., in the sale of this machine, on the ground simply that a defective piece of timber was used, is futile. There was nothing tending in the least degree to taint the transaction with fraud so far as they are concerned. In the supposition that at least some unsuitable material might have been used in the manufacture of the article the parties agreed in writing what the effect should be, if on trial it should be shown that such was the case. By this contract, entered into with a full knowledge of its import, and what it required of each, the parties are bound.

The evidence shows very clearly that there was no just defense to the notes, and the court did right in directing a verdict accordingly.

Judgment affirmed.