Monroe & Monroe, Inc. v. Cowne

112 S.E. 848, 133 Va. 181, 1922 Va. LEXIS 92

• Court: Supreme Court of Virginia
• Decided: June 15, 1922
• Status: Published

Opinion

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

The questions raised by the assignments of error will be disposed of in their order as stated below.

1. Did the court err in admitting in evidence proof of the declaration of the agent of the defendant, who collected the purchase money for and installed-the machine, made while such agent was engaged in the work of installation, concerning the efficiency of one Embrey as an assistant, whom the plaintiff furnished to assist in that work?

The question must be answered in the negative.

The declaration of this agent was made concerning a matter directly within the scope of his employment and while engaged in the performance of his duties, and was, therefore, properly admissible in evidence, if upon a matter in issue in the ease'. Lynchburg Tel. Co. v. Booker, 103 Va. 594, 50 S. E. 148; Blair v. Security Bank, 103 Va. 762, 50 S. E. 262; Washington, etc., R. Co. v. Deahl, 126 Va. 141, 100 S. E. 840. The -efficiency of the assistance was put directly in issue by the provision on that subject contained in the warranty which was in evidence.

2. Did the court err in permitting another purchaser from the defendant, of a milking machine, which he said was “a machine just exactly like the one” the plaintiff purchased, to testify as to its efficiency after a thorough trial, under circumstances which he narrated and which tended to show that the machine was properly managed and attempted to be used as intended?

It is apparent that this testimony was pertinent to the chief issue in the case. Its weight was for the jury.

3. Did the court err in permitting the same witness, last named, to testify as to the injured condition of the udders of certain cows of the plaintiff, which he saw during the time the plaintiff was attempting to use the machine, although the witness did not see the machinery in actual use upon any of those cows?

The plaintiff introduced other testimony tending to show that the machine was actually used upon the cows in question. A party does not have to prove his whole case by one witness.

4. Did the court err in permitting the same witness, just referred to, to testify to the fact that the defendant took back the milking machine which witness bought of it, as aforesaid, because it was inefficient, upon the witness paying $35.00 on account of the expense of installation?

The ground of objection to the testimony is that that machine was bought under a contract containing different terms from the contract under which the plaintiff purchased. We do not perceive that such a difference affects the question. The testimony was permissible, for what it was worth, as tending to show the inefficiency of the machine bought by the plaintiff, that being a duplicate of the machine which the witness, in substance, testified proved inefficient.

5. Did the court err in permitting the same witness, when testifying about the trial he gave the machine he bought of the defendant, to testify that he wrote to the defendant about the trouble he was having with the machine because it would not work properly and that a Mr. Lamp came, stating that he was sent by the defendant in response to the letter of witness, and that Mr. Lamp said “it would be all right, he said go ahead * *” that, “he milked a few cows himself with it, he put it on some of them” and told witness to go ahead with the machine?

The objection to this testimony is that the plaintiff introduced no testimony to identify Lamp as an agent of the defendant. But we need not stop to consider that question. The testimony as to what Lamp did and said was favorable, not adverse to the defendant. There is no merit in the objection to the testimony.

6. Did the court err in excluding from the jury the testimony of one Allen, a witness for the defendant, that his experience with the use of a milking machine bought of the defendant was satisfactory upon its appearing from the testimony of this witness that the machine he used was made under a different patent, and had a different “pulsator” from that of the machine bought by the plaintiff, and that witness had never used such a machine as the latter and did not know the difference between the pulsator s on the two machines?

There is obviously no merit in the assignment of error raising this question.

7. Did the court err in excluding from the jury a portion, and in not allowing evidence of the residue of a statement made to an officer of the defendant company by the expert, Fritz, on his return from installing the machine bought by the plaintiff, by way of a verbal report, not made in the presence of the plaintiff, not communicated to the latter by any letter from the defendant, or otherwise, prior to the trial, which statement or verbal report of Fritz was to the following effect, namely: That plaintiff would not stay with Fritz while he was giving instructions and operating the machine and that as soon as Fritz left the barn the plaintiff would discontinue its use and made no effort personally to operate it. That after some effort Fritz persuaded the plaintiff to try and milk the cows with the machine, and if the first cow showed any inclination for not allowing the machine to be attached on the first trial, the plaintiff would immediately stop and refuse to continue. That plaintiff’s man, Embrey, was inclined to operate the machine, and, in Fritz’s opinion, would have done so successfully had plaintiff permitted him?

Fritz was not a witness in the case.

This testimony was plainly merely hearsay, not falling within any of the exceptions to the rule against the admissibility of hearsay evidence. Hence the question must be answered in the negative.

8. Did the court err in refusing to allow one of the officers of the defendant company called as a witness for such company, to answer the following question, namely: “A number of witnesses have testified here as to services rendered by experts in your employ, or in that of the Empire Cream Separator Company, in assisting farmers who purchased your machines in eradicating this disease of mammetis from their herds. Please state whether or not you feel under any obligation to do that, or whether that is a voluntary service?”

The learned judge of the court below ruled that he sustained the objection of the plaintiff to this question, “for the reason that it calls for the expression of opinion from this witness as to what his warranty means.” That ruling was correct.

9. Did the court err in giving instruction 1 asked for by the plaintiff?

This question must be answered in the negative.

The objection to this instruction set forth in the assignments of error concerning it are to the effect that there was no evidence before the jury to support it.

Since the jury found no verdict for any damages except the amount of the purchase money paid for the machine, there is no occasion to consider whether there was any evidep.ee to sustain the instruction with respect to any further damages.

With respect to the other matters embraced in the instruction, we deem it sufficient to say that we have carefully considered the record and we find ample evidence to support the verdict in so far as it was based on the instruction under consideration.

10. Did the court err in giving instruction 2 asked for by the plaintiff?

The objection to this instruction set up by the assignments of error are that there was no evidence to show that there was any waiver on the part of the defendant of the requirement in the warranty that the plaintiff should give immediate notice to the defendant at Alexandria, Virginia, on the starting of the machine, of its failure to work properly, so that the failure of the plaintiff to give any notice at Alexandria, Virginia, of the failure of the machine to do the work as guaranteed, was fatal to the plaintiff’s right of recovery.

The general rule undoubtedly is that the contract requirement as to' the place, as well as the time and manner of giving such notice, must be strictly complied with. But such requirement may be waived by the conduct of the seller.

The evidence for the plaintiff was to the effect that before the agent of the defendant, Fritz, who installed the machine, left the plaintiff’s premises, immediately after the starting of it, and after various trials of it, Fritz had notice that the machine failed to work properly, with proper management, and so admitted at the time. This notice to the defendant’s agent, about a matter within the scope of the agent’s employment, given while the agent was engaged in the performance of his duties, while not notice at the place required by the contract, was constructive notice to the defendant. The testimony for the plaintiff is further to the effect that he again notified the defendant that the machine wouldn’t work and within four days after Fritz gave up the undertaking to make it work and left the place, Mr. Snyder, another agent of the defendant, being the agent who sold plaintiff the machine, came up to the plaintiff’s place, where the machine was, in response to the latter notice. That thereafter plaintiff gave the defendant further notices, that the machine wouldn’t work, and that' another agent was sent by the defendant to try and get it to work properly, without success, and that finally Mr. Monroe, one of the officers of the defendant company, came several times and tried to and did not succeed in getting the machine to operate as guaranteed. It is true that the defendant denied the receipt of the notices mentioned, but the credibility of that denial was for the jury.

As said in 24 R. C. L., sec. 525, p. 247 and sec. 526, p. 248: “The provision for notice being intended for the benefit of the seller, the necessity for giving it or defects in form or method may be waived by him; and the original contract, though in writing, may be modified by an oral agreement as regards the requirements of notice. Ordinarily any objection on the part of the seller that the notice he received is not in accordance with the requirements of the contract is waived by his acting thereon. Thus persistent efforts on the part of the seller to remedy defects in a machine sold, after the expiration of the time limited for giving such notice of its defective condition, has been held a waiver of the required notice. So where it is clearly shown that notice was in fact given the seller, though the method of conveyance did not follow the requirements of the contract, and no objection to the method used was made by the seller, this will, ordinarily, be deemed a sufficient compliance with the requirements.”

“Where the seller is a corporation, and can act therefore only through its agents, it cannot divest itself of power to waive a condition for its benefit, and its agents working in its interest will be presumed to have the usual power to waive requirements as to notice.”

From which we see that conduct of the seller, such as the testimony for the plaintiff tended to show,consisting of persistent efforts to remedy defects in the machine sold, was sufficient to constitute a waiver of all notice, so that whether any notice was given at all became immaterial.

The same is true because of the knowledge of the inefficiency of the machine obtained by the Agent, Fritz, who installed it, according to the testimony for the plaintiff.

As said in Peterson v. Wood, etc., Co., 97 Iowa, 148, 66 N. W. 96, 59 Am. St. Rep. 399 (involving a warranty requiring a written notice, which was not given): “Every purpose of that provision of the contract had been accomplished by the personal presence of the agent, and the knowledge obtained by him of its operation. Under such circumstances, to have required a written notice was to compel the plaintiff to do a useless act, which would convey to the agent the very information he already possessed. There is no good reason for requiring notice under such circumstances. Nor have we any doubt that an agent authorized to sell such a machine, and to set it up, and to see that it works properly, may waive such a written notice, when, by his personal presence, he is in possession of knowledge of every fact which such notice could give him. It may be said that the contract provides ‘no one has any authority to add to, abridge, or change this warranty in any manner.’ If full effect should be given to this language, the defendant is powerless to even change or alter its contract, no matter though plaintiff should consent thereto. Such a provision in the contract, if held binding, is a prohibition for all time, and under all circumstances, against any change in the contract. It is inconceivable that the defendant ever intended to tie its hands in such a manner. A corporation can only act through its agents and such agents must always have power to represent and act for it.”

See, to same effect, 30 Am. & Eng. Enc. of Law, (2nd ed.) p. 202.

11. Was instruction 3 given at the request of the plaintiff erroneous?

The objection to this instruction is that it ignored the contract requirement as to the time within which the notice was to be given; and a number of authorities are cited to sustain the position of the defendant to the effect that “immediately” does not mean “within a reasonable time,” but “at once,” “instantly,” “promptly,” and the authorities cited do so hold, under varying, circumstances. On- the other hand, authorities are cited for the plaintiff to the effect that in such a contract as that under consideration a provision for immediate notice does not mean the shortest time possible in which notice can be given; but that the term must receive a sensible interpretation favorable to the general object and consistent with the surrounding circumstances, and that no greater dispatch is required than is fairly just and reasonable in view of all the circumstances. Upon a subject so elementary, we do not feel that we should consume the time required to set forth here, in detail, the circumstances involved and the respective holdings in the authorities cited pro and eon, and to distinguish them. We deem it sufficient so say that they are readily distinguishable, and that the instruction under consideration above is abundantly sustained by the authorities. 5 C. J. 1439, title “at once” note 91; 24 R. C. L. sec. 523, p. 246; 21 Cyc. 1734, title “immediately.”

12. Was instruction 4, given as asked by the plaintiff, erroneous?

This instruction was so obviously correct that comment is unnecessary.

13. Did the court err in adding to the 7th subsection of the first instruction offered by the defendant, the following: “unless such notice was waived by defendant as provided in these instructions,” and in adding, near the conclusion of the second instruction offered by the defendant, this language: “unless the jury believe that these requirements were waived by the defendant?”

These were but consequential amendments necessary to harmonize all of the instructions given. The principle involved has been above discussed.

14. Did the court err in striking out the 8th subsection of the first instruction offered by the defendant?

The question must be answered in the negative.

This subsection concerned only the consequential damages mentioned. As the verdict included no such damages it is unnecessary to say anything further on the subject of whether the court erred in striking out this subsection, and the question must be answered in the negative.

15. Did the court err in adding to subsection 5 of instruction two, offered by the defendant, the following: “or requested the defendant to take back?”

The objection to this amendment is that there was no evidence to support it and that the actual return of the machine was a condition precedent to the plaintiff’s right of recovery.

It is true that where, &$ in the instant case, the warranty contains, in substance, a condition that the article shall be deemed to fulfill the warranty unless returned, the general rule is that if the buyer retains the goods he cannot avail himself of the breach of the warranty, even in an action for damages, unless the goods are worthless for any purpose. 35 Cyc. 436, 438. But it is elementary that an offer to return goods which the seller refuses to accept, is equivalent to a return of the goods, and is a sufficient performance of the conditon of the warranty on the subject of the return of the goods.

The correspondence in evidence and the testimony of and for the plaintiff shows that the plaintiff, very soon after the machine was installed, wrote the defendant a letter in which he took the position that the machine did not comply with the warranty, because of inefficiency to do the work as guaranteed, and said “I would like to know at once what you want me to do with your machine,” and the conduct of the parties thereafter; and such evidence, while not without conflict, tended to show, and warranted the jury-in concluding that the plaintiff never at any time, after his first letter aforesaid, changed his attitude, never accepted the machine as satisfactory, wanted all the time to return it and get his money back; that the defendant was fully informed of this and that the conduct of the defendant was such that it amounted to a refusal to accept and excused the failure of the plaintiff to make an actual return of the machine.

Hence, the question must be answered in the negative.

16. Did the court err in adding to instructions four, five and seven offered by the defendant, the portions thereof which are underscored in the reproduction of them appearing above, preceding this opinion?

These additions were proper to make the instructions applicable to the evidence in the case; and the most of them were but consequential amendments needful to be made under the rules of law above adverted to, and so as to prevent a conflict between these instructions and those given at the request of the plaintiff. For the reasons above stated, we find nothing in any of these amendments in conflict with the requirements of the warranty or which appears to be of a character likely to have misled the jury on that subject; nor do we think that the insertion of the words “as installed,” in the seventh instruction under consideration, was calculated to mislead the jury. The positions with respect to these matters, taken in argument for the defendant, seem to us to be without substantial merit.

The sole remaining question presented for our decision by the assignments of error is the following:

17. Did the court err in its refusal to set aside the verdict, as contrary to the law and the evidence?

This question must likewise be answered in the negative.

The legal questions involved have been disposed of above; and also the chief questions of fact. The other questions of fact are not novel, hence, it would be a needless consumption of time to set forth the conflicting evidence in detail. We deem it sufficient to say, that, upon all material matters of fact in controversy, there was testimony in behalf of the plaintiff which, if credible, was sufficient to support the verdict. There was nothing in this testimony which was physically impossible or inherently incredible. Therefore the verdict has concluded the facts in controversy in favor of the plaintiff and we cannot disturb that conclusion.

The case will be affirmed. .

Affirmed.