Opinion
No. 32898.
November 22, 1937. Suggestion of Error Overruled January 3, 1938.
1. SALES.
Conditional sales contract provision that use of refrigerator display case for five days constituted acceptance thereof held waived, so as to enable buyer to plead failure of consideration by reason of defects in refrigerator when sued for balance of purchase price thereof, where seller undertook to repair refrigerator, advised buyer to expend considerable sum for a new coil, and agreed to make refrigerator function or furnish buyer another refrigerator.
2. SALES.
Implied warranty existed on part of manufacturer who sold refrigerator display case that it would reasonably perform services for which it was manufactured and sold.
3. SALES.
In action for balance of purchase price of refrigerator display case, where buyer pleaded failure of consideration by reason of defects in refrigerator, buyer's evidence as to difference in value of refrigerator at time he bought it, with implied warranty that it would reasonably perform services for which it was manufactured and sold, and value at time he received it, was competent, since buyer could rely upon such difference in value as a payment on refrigerator.
APPEAL from circuit court of Harrison county. HON.W.A. WHITE, Judge.
Lemuel H. Doty and Albert Sidney Johnston, Jr., both of Biloxi, for appellant.
It is well settled, we submit, that if, after knowledge of the breach of warranty as to quality, the buyer continues to use and consume the goods received by him, he waives his right to rescind and return said goods or the amount unconsumed.
Lyon v. Bertram, 20 How. 149, 15 L.Ed., 847; Noble v. Olympia Brewing Co., 64 Wn. 461, 117 P. 241, 36 L.R.A. (N.S.) 467; Cream City Glass Co. v. Friedlander, 84 Wisc. 53, 21 L.R.A. 135; Fox v. Wilkinson, 133 Wisc. 337, 113 N.W. 669, 15 L.R.A. (N.S.) 1107.
It is no excuse for the continued use and consumption that it is required by the exigencies of the buyer's business, and it is also immaterial that the buyer, while continuing to use and consume the property, made objections to the quality; and the fact that the further use or consumption of the goods, after knowledge of defects in quality, was for the purpose of establishing evidence of their defective quality will not prevent such use from constituting a waiver of the right to return.
Cream City Glass Co. v. Friedlander, 21 L.R.A. 135; Stillwell Bierce Smith Vaile Co. v. Biloxi Canning Co., 29 So. 513.
The case of Stillwell Bierce, etc., v. Biloxi Canning Co., decided by this court, through Justice Terral as the organ of the court, is practically on all fours with the case at bar. Here the appellee used the display case, made payment on it and wrote that he was satisfied. His receipt of the display case from the carrier and subsequent use thereof, constituted an acceptance. When he wrote appellant he was not satisfied on several occasions, as he testified before the jury, he continued to use the display case. His actions were inconsistent with his letters. His testimony was not supported or substantiated by what he did while using the display case.
Lumberman's Supply Co. v. Poplarville Sawmill Co., 117 Miss. 274, 78 So. 157.
Where parties have reduced to writing what appears to be a complete and certain agreement, it will, in the absence of fraud, accident, or mistake, be conclusively presumed that the writing contains the entire contract, and parol evidence of prior or contemporaneous representations or statements is inadmissible to add to, take from, or vary the written instrument.
Bullar v. Brewer, 118 Ga. 918, 45 S.E. 711.
Where the written sale contains no warranty, or expresses the warranty that is given by the vendor, parol evidence is inadmissible to prove the existence of a warranty in the former case, or to extend it in the latter by inference or implication. So where it appears that the agreement has been integrated in the writing, the terms of the writing cannot be changed or contradicted by parol evidence.
Benjamin on Sales (7 Ed.), sec. 621; Milwaukee Boiler Co. v. Duncan, 87 Wis. 120, 58 N.W. 232; Hoover Co. v. Humphrey, 107 Miss. 810, 66 So. 214; Noble v. Olympia Brewing Co., 64 Wn. 461, 117 P. 241, 36 L.R.A. (N.S.) 468.
If the seller of personal property delivers to the purchaser an article that does not comply with the warranty, express or implied, the latter may rescind by an offer to return the article within a reasonable time after discovery of the defects, but he must act with promptness. On discovering that the property is not such as was contemplated, he must offer to return it. If he neglects to do so immediately upon discovering the breach of warranty and keeps it, treating it as his own, he cannot afterwards rescind.
Barnett v. Stanton, 2 Ala. 181; Hodge v. Tufts, 115 Ala. 366, 22 So. 422; Comer v. Franklin, 169 Ala. 573, 53 So. 797; Detroit Heating Lighting Co. v. Stevens, 16 Utah, 177, 52 P. 379.
If, after ascertaining defects entitling him to rescind, the purchaser exercises dominion over and avails himself of benefits from the purchased property to which he could only be entitled as owner, it is a waiver.
Fox v. Wilkinson, 133 Wis. 337, 14 L.R.A. (N.S.), 1107; Sturgis v. Whisler, 145 Mo. App. 148, 130 S.W. 111; Mizell v. Watson, 57 Fla. 111, 49 So. 149; Hodge v. Tufts, 115 Ala. 366, 22 So. 422; Gammon v. Abrams, 53 Wis. 323, 10 N.W. 479; Chambers v. Lancaster, 160 N.Y. 342, 54 N.E. 707; J.I. Case Thrashing Mach. Co. v. Patterson, 137 Ky. 180, 125 S.W. 287; Stillwell, B. S.V. Co. v. Biloxi Canning Co., 78 Miss. 779, 29 So. 513.
At the conclusion of the testimony, appellant requested a peremptory instruction, which was refused. We submit said instruction should have been given. There was no testimony to support appellee. He failed to submit an issue to the jury as to set-off and recoupment, or either, and we submit his right so to do was waived. Again, he denied the indebtedness sued for by appellant, and set-off admits an indebtedness, because it only applied to cases of mutual indebtedness. The verdict of the jury is contrary to the law and the evidence.
Geo. R. Smith and White Morse, all of Gulfport, for appellee.
The contract provides: "The use of the property described herein, or any portion thereof, for a period of five days, constitutes an acceptance of the same, as complying with all the terms and specifications of this contract and all claims for damages, errors or shortage not filed within that time are hereby waived."
The trouble about that is the defect did not appear in that time. It was not a claim for damages or shortage, to be filed, but it was a total failure to function. Furthermore, Harris agreed to give a new one if it could not be made to work. No court would enforce such an unreasonable provision, especially to relieve against a breach of warranty.
The written contract is nowhere varied in any of its terms. A new contract was made to give Farrell a new box. No attempt is made to vary the written contract.
Brown v. Murphree, 31 Miss. 91.
There was no objection to the testimony that Harris asked Farrell to continue experiments, promised to remedy, and if not successful to give him a new box. The case is therefore on all fours with the sale of Fay v. Cohn, 158 Miss. 733. This case lays down the rule: 1. That where there has been a breach of implied warranty, and seller notified purchaser it would not accept return of articles, no tender back was necessary, it being a vain thing. 2. That under such conditions notes given are subject to a defense of want of consideration. 3. That where promises are made by seller that defects can be remedied and purchaser keeps article to allow such attempts, there is no acceptance. In this case the evidence of debt is the note; they are relied on for recovery. Our defense simply is we do not owe them because the consideration has failed.
German American Provision Co. v. Jones, 87 Miss. 277; Carver Gin Co. v. Gaddy, 62 Miss. 201; Sharp v. Brookhaven Brick Co., 120 Miss. 850; Bowers v. Southern Automatic Music Co., 114 Miss. 25.
We respectfully submit the case was properly submitted to the jury by the county court, and that their verdict is in accordance with the law and evidence, that the case was properly affirmed by the circuit court and should be here affirmed.
Appellant, Viking Refrigerators, Inc., brought suit in the county court against the appellee, Farrell, to recover the sum of $458.22, with interest and attorney fees, and to enforce a purchase-money lien upon a Tempter Viking porcelain display case, with accessories. The appellee pleaded the general issue and a special plea of failure of consideration. The alleged debt was evidenced by a note. The evidence was heard, the cause was submitted to the jury, and a verdict for the appellee was rendered. The Viking Refrigerators, Inc., appealed to the circuit court where the judgment of the county court was affirmed, and it prosecutes an appeal therefrom to this court.
The essential facts are these: On May 23, 1934, appellant sold to appellee the above-described refrigerator display case, the sale was made by written order, executed by the appellee, and accepted by the appellant. The purchase price was $883.70. M.T. Harris made the sale from a catalogue. The contract contained the following stipulations:
"This contract states the entire agreement for the purchase of said property. . . . It is agreed that the title to the articles covered by this contract no matter whether, or by what manner or degree it may be attached to the realty, shall not pass to the purchaser until the entire purchase price thereof and any note or notes, including renewals, given therefor and all judgments for the whole or any part thereof is paid, and such property shall not be removed from the building in which it is first installed, without the consent of the Viking Refrigerators, Inc. . . . The use of the property described herein, or any portion thereof, for a period of five days, constitutes an acceptance of same, as complying with all the terms and specifications of this contract and all claims for damages, errors or shortage not filed within that time are thereby waived. . . . The responsibility of the Viking Refrigerators, Inc., on this contract shall cease upon the delivery of the goods in good condition to the Railroad or Transportation Company. This contract is not modified by any verbal agreement." By the further terms of the contract $80 was remitted with the order; $118.50 was paid C.O.D. through the Hancock County Bank, and the balance, $685.20, was evidenced by notes in twenty-four monthly installments of $28.55 each.
These documents, together with the bill of lading, were offered in evidence. The depositions of the officers and employees of the appellant show that the particular chattel described in the contract was delivered in good condition to the common carrier, and that the above balance remained past due and unpaid. The appellant admitted that, on complaint reaching it through Harris and others, it had undertaken, through its representatives and mechanics, to service this refrigerator at various times.
The appellee's evidence was to the effect that about May 28, 1934, he received the chattel at Pass Christian, and that Harris, the agent of the appellant, was there and superintended the unloading and transportation of the machine to appellee's place of business, where Harris installed it; that it appeared to be in good condition, and that there was nothing on the outside of the machine to indicate that the transportation company had in any way damaged it; that he was not a mechanic and knew nothing about the operation of the machine; that he bought it to display meats and other products in his grocery store, and as a refrigerator for the preservation of such articles; that the machine operated all right for about twenty-five days and then it "began to buckle;" he called Harris, who came and undertook to adjust the trouble. The machine allowed the meat and cheese to spoil, the framework buckled, and too much water accumulated in the case. From time to time Harris reported the unsatisfactory condition of the refrigerator and made suggestions to the appellant, and it wrote him the manner in which the trouble could be obviated.
In September an attorney for Farrell wrote the Viking Refrigerators, Inc., requesting that it make a proper adjustment — either repair the refrigerator or send a new one, as Harris had agreed it would. Later a mechanic was sent by the Viking Refrigerators, Inc., and made certain repairs. At that time Farrell paid $114 on his note, and wrote the company that the mechanic had "done a good job." In the meantime, according to Farrell's testimony, Harris had agreed that the appellant would make the refrigerator perform its function of display and refrigeration or else give him a new one in lieu thereof; that the company could not afford to have the machine fail to operate.
The company took the position that, if the machine had been properly examined upon its arrival at Pass Christian, it would have developed that the railroad company had injured it in transit, and suggested that it would make claim against the railroad if Farrell would execute a proof of claim. The appellant wrote Harris on August 14th with reference to the complaint, and suggested changes in order to make the machine function; the installation of a new coil; and stated, "we would like to see this matter taken care of and assure you your cooperation in this instance will be deeply appreciated." On this advice appellee paid appellant $80 for a new coil, in order to remedy the defect, but, according to Farrell's testimony, the machine again failed to function. He retained it and was operating it at the time of the trial, but claimed that he continued to lose meat and other products and declined to make further payments.
An expert mechanic was offered and testified, in effect, that he examined the machine when the trouble developed in June, 1934, and that in his opinion the machine did not function because of a fundamental defect in its construction, which he explained in detail, and to the effect that appellee had paid the value of the chattel on the date of its receipt by him.
The basis of the appeal here is that the court below erred in not granting appellant a peremptory instruction upon the strict terms of the contract quoted above — no complaint was made by Farrell within five days after he began using the refrigerator, and appellant claims that he was bound by the terms of the contract and should be required to pay the balance due. Appellant relies mainly upon the case of Stillwell, Bierce Smith Vaile Co. v. Biloxi Canning Co., 78 Miss. 779, 29 So. 513. In that case an ice machine was purchased by the Biloxi Canning Company from Stillwell. The latter installed the machine and had its engineer instruct the Biloxi Canning Company engineer for a sufficient time for the defendant to make up its mind as to the acceptance of the machine. After the machine had been under test for ten days, as specified in the contract, the buyer wrote the seller that the machine was not up to contract and disaffirmed the contract, but in direct contravention of its disaffirmance the buyer later operated the machine for a time.
We think that, if we concede, though we do not decide, that the short time of five days of use of the machine would constitute an irrevocable acceptance binding the purchaser, even as against the implied warranty, still the conduct of the appellant here in undertaking the repair of this machine for many months, and advising appellee to expend a considerable sum compared to the price of the machine, and the agreement to make it function or furnish appellee another machine, constituted a waiver of this five-day clause in the contract. In other words, when the trouble developed, because of a latent defect according to the evidence offered by appellee, twenty or thirty days after the installation of the machine, the company did not then stand upon its written contract, but undertook, through its agent whose authority is not here disputed, to correct the defect, and thereby assured the buyer that it would so do. It cannot now be heard to say that it stands upon the letter of its contract. There was no express warranty in the written contract here under consideration, but there was an implied warranty on the part of the appellant, the manufacturer, that the chattel would reasonably perform the services for which it was manufactured and sold. Brown v. Murphee, 31 Miss. 91. The waiver we have applied to this case on the part of the appellant is illustrated in the case of Fay Egan Co. v. Cohn Bros., 158 Miss. 733, 130 So. 290. In truth, the undisputed facts in the case at bar are more convincing of waiver than the facts in the Fay Case.
Having determined that appellant waived the five-day provision of its contract, the evidence offered by appellee as to the difference in value of the chattel at the time he bought it, with the implied warranty that it would reasonably perform the services for which it was manufactured and sold, and at the time he received it, was competent. The buyer here relied upon the seller's assurance that it would remedy the latent defect in the chattel. Being sued upon the contract, the appellee could rely upon such difference in value as a payment thereon. See McKean v. Apparatus Co., 74 Miss. 119, 20 So. 869, 60 Am. St. Rep. 502; Baker Hardware Co. v. Ellis, 149 Miss. 257, 115 So. 425; J.B. Colt Co. v. Mazingo, 141 Miss. 402, 106 So. 533.
We find no reversible error herein.
Affirmed.