{
  "id": 8659660,
  "name": "I.S. ROBINSON v. ED. D. HUFFSTETLER",
  "name_abbreviation": "Robinson v. Huffstetler",
  "decision_date": "1914-05-06",
  "docket_number": "",
  "first_page": "459",
  "last_page": "465",
  "citations": [
    {
      "type": "official",
      "cite": "165 N.C. 459"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "159 N. C., 510",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
    },
    {
      "cite": "135 N. C., 547",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
    },
    {
      "cite": "124 N. C., 325",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
    },
    {
      "cite": "119 N. C., 476",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
    },
    {
      "cite": "138 N. C., 209",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        11269104
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/138/0209-01"
      ]
    }
  ],
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  "last_updated": "2023-07-14T20:20:28.606556+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "I.S. ROBINSON v. ED. D. HUFFSTETLER."
    ],
    "opinions": [
      {
        "text": "AlleN, J\\\nWhen personal property is sold by sample, or upon a representation as to quality, which does not amount to an express warranty, tbe purchaser is given a reasonable opportunity' for inspection and examination, and if not according to tbe sample or representation, be may reject them wben tendered, or return them after deliv\u00e9ry, provided be acts within a reasonable time, and can recover anything of'value parted with as tbe consideration for tbe trade.\nWhat is a reasonable time is dependent upon conditions and circumstances, as in some cases tbe defect may be discovered by inspection, while in others trial and use would be necessary. If tbe purchaser retains the property, after such reasonable opportunity for discovering tbe defect has b\u00e9en afforded him, be cannot, under ordinary circumstances, be beard to complain, and it will be assumed that be has accepted tbe property as a compliance with the contract of sale.\nThese positions are fully sustained by the case of Parker v. Fenwick, 138 N. C., 209.\nIf, however, there is an express warranty as to quality, there is much conflict of authority as to tbe rights of the purchaser. All seem to be agreed, if tbe warranty is false, that so long as tbe contract is executory tbe purchaser may, upon discovery of the defect, rescind the contract and recover anything paid, out or 'parted with as tbe consideration for it, or he may accept and recover damages for breach of the warranty; but if the contract is executed there is a difference of opinion as to tbe rights of tbe purchaser, a majority of tbe courts bolding in such case that his remedy is on tbe warranty.\nTbe doctrine is stated in 35 Cyc., 434, witb ample citation to support tbe text.\n\u201cIn tbe absence of an agreement giving bim tbe right to return tbe goods, it is tbe rule in most jurisdictions that tbe buyer in an executed contract of sale of goods cannot on a breach of warranty return tbe goods, bis remedy in such case being on tbe warranty. On tbe other band, in other jurisdictions it has been held that tbe buyer may resort to either remedy, and bis right is recognized generally when the sale is executory.\u201d\nAmong tbe courts bolding that tbe purchaser may resort to either remedy are those of California, Iowa, Kentucky, Maine, Maryland, Massachusetts, Missouri, Nebraska, Oklahoma, and Wisconsin; and while tbe question has not been discussed fully and tbe distinctions noted in our reports, we have at least three cases in which it is either held that the purchaser may pursue either remedy or tbe right is assumed to exist.\nIn Kester v. Miller Bros., 119 N. C., 476, tbe plaintiffs sold tbe defendants an engine, witb a warranty as to quality, and after acceptance of tbe engine and its use it was discovered that it was defective, and speaking of tbe rights of tbe purchaser, tbe Court says:\n\u201cTbe defendants, when they discovered tbe defect in tbe engine, bad tbe right to reject it and bring an action against tbe plaintiffs for such damages as they bad sustained by reason of tbe plaintiffs\u2019 nonperformance of tbe contract, if they chose so to do; or they could have kept tbe engine and set up by way of counterclaim against plaintiffs\u2019 demand for tbe contract price tbe breach of warranty in reduction.\u201d\nAgain in Manufacturing Co. v. Gray, 124 N. C., 325 :\n\u201cIf tbe property purchased is present and may be inspected, tbe warranty is collateral to tbe contract and tbe title to-the property immediately passes to tbe purchaser. And if tbe warranty is false, the purchaser\u2019s redress is an action for damages upon tbe warranty. But if tbe property is not present, where it might be inspected, tbe warranty may be treated as a condition precedent, as 'well as a warranty. And if tbe property purchased is not what it was warranted to be, tbe purchaser, upon delivery of tbe property, may treat tbe warranty as a condition precedent and refuse to receive or accept tbe property, and notify tbe party from whom be purchased; and if be bas not paid for tbe property, be need\u2019not do so; and if be bas paid tbe purchase money or any part of it, be may recover tbe money so paid from tbe seller. Tbe purchaser is not compelled in all cases to reject tbe property, at once, upon its receipt. If it is machinery, be bas a reasonable time to operate tbe machinery for tbe purpose of testing it.\u201d\nAnd in Critcher v. Porter Co., 135 N. C., 547, which was dealing with a contract for tbe sale of an engine with warranty:\n\u201cIf tbe plaintiff bad, immediately upon tbe receipt of tbe engine, ascertained that it did not develop 25 horse-power as warranted' to do, rejected it, or, as be expresses it, \u2018put it aside;\u2019 notifying tbe defendant thereof, it is clear that be would have been entitled to recover tbe amount paid and to a cancellation of bis notes and tbe trust deed, together with such damage as be sustained and which were within tbe contemplation of tbe parties in bis effort to use it.\u201d\nTbe use of tbe word \u201cimmediately\u201d impairs tbe force of tbe last quotation, but when considered in connection with the context, it appears that tbe defect \u2014 -the failure to produce certain power \u2014 would not appear at once, but only after delivery and by use.\nTbe rule is, however, further modified when there is a warranty and an agreement to return tbe property if not as warranted.\nThis qualification is stated to be that \u201cTbe contract of warranty may, however, provide that if tbe article fails to fulfill tbe warranty, it shall be returned to tbe seller, and in such case the condition is part of tbe warranty and must be complied with, and tbe fact that within tbe time stipulated notice of dissatisfaction is given will not relieve tbe buyer from tbe conditions of tbe contract. Tbe condition may be that tbe article shall be deemed to fulfill tbe warranty unless returned within a specified time. Under such conditions, if tbe buyer retains tbe goods be cannot avail himself of tbe breach, either in an action fqr damages or by way of recoupment or counterclaim. If tbe provision \u00f3f tbe contract is not imperative, but merely permits tbe buyer to return tbe property, be may, at bis election, resort to tbat remedy or bis remedy on tbe warranty, tbe remedies being cumulative. So, too, tbe contract may impose on tbe seller tbe duty of remedying defects or taking back tbe machine, in wbicb case it is not incumbent on tbe buyer to return tbe machine in order to avail himself of tbe breach of warranty as a defense in an action for tbe price. Tbe purchaser is entitled to a reasonable time within wbicb to test tbe articles purchased for defects, and to return them if not as warranted. If tbe contrast specifies tbe time within wbicb return .shall be made, a compliance with tbe contract in this regard is necessary.\u201d 35 Cyc., 437 et seq. '\nIt is tbe same principle applied in Manufacturing Co. v. Lumber Co., 159 N. C., 510.\nIt seeins, therefore, to be settled tbat when there is an express warranty in tbe sale or exchange of personal property, and it is a part of tbe contract of sale tbat tbe property is to be returned within a specified time, if not as warranted to be, tbat tbe complaining party can have no redress by reason of tbe warranty, in tbe absence of fraud, without offering to return tbe property within tbe time named.\nIf so, tbe charge of bis Honor is erroneous. Tbe plaintiff and defendant agree tbat there was a contract between them for tbe exchange of rnulesj and tbe only differences between them as to tbe terms of tbe contract are, first, tbe plaintiff says tbe defendant warranted tbe mules to be sound, while tbe defendant says be warranted them to be sound as far as be knew; second, tbe plaintiff says it was agreed tbat if tbe mules exchanged were not as warranted to be, and either party was dissatisfied, they would rescind tbe contract, each party taking tbe mules be originally owned, while tbe defendant says tbat tbe time within wbicb this right to rescind tbe contract could be exercised was restricted to one week.\nTbe plaintiff did not offer to return tbe mules be got from tbe defendant until after tbe expiration of one week from tbe trade.\nTbe charge given presents only tbe contentions of tbe plaintiff upon tbis difference as to tbe terms of tbe contract, bis Honor telling tbe jury, in tbe absence of fraud, if tbey found from tbe evidence tbat tbe defendant guaranteed tbe mules to be sound, wben tbey were not, tbey would answer tbe first issue, as to tbe ownership of tbe mules, \u201cYes,\u201d which, if ordinarily a correct statement of tbe law, would not be true if tbe parties by agreement bad limited tbe time within which tbe contract could be rescinded to one week.\nTbe charge is predicated upon tbe assumption tbat the plaintiff\u2019s version of tbe contract is correqt, and ignores tbe evidence of tbe defendant, which be bad tbe right to have considered'by the jury.\nIt is unnecessary to consider tbe other exceptions, as a new trial is ordered on account of tbe error pointed out.\nNew trial.",
        "type": "majority",
        "author": "AlleN, J\\"
      }
    ],
    "attorneys": [
      "George W. Wilson for plaintiff.",
      "Mangwm & Woltz and A. G. Jones for defendant."
    ],
    "corrections": "",
    "head_matter": "I.S. ROBINSON v. ED. D. HUFFSTETLER.\n(Filed 6 May, 1914.)\n1. Vendor and Purchaser \u2014 Contracts\u2014Conditions of Warranty \u2014 Return of Goods.\nWhere there is a warranty of personal property, with express provision that the property shall he returned if not found to be as warranted, within a certain fixed time, this provision is a condition annexed to the contract, precluding the vendee from any redress under the terms of the warranty unless the property is returned within the time specified.\n2. Same \u2014 Trials\u2014Instructions\u2014Conflicting Evidence.\nThe plaintiff and defendant exchanged mules, and the evidence was conflicting, on the plaintiff\u2019s part, as to whether the defendant warranted the mules he gave in exchange as being sound, and if not as warranted, to be returned within a reasonable time, and on the defendant\u2019s part, whether, if the mules were not as warranted, they should be returned within a week, which was not done. A charge of the court is held for reversible error, that if the defendant warranted the mules to be sound when they were not, to answer the issue in the.plaintiff\u2019s favor, for it disregarded the defendant\u2019s evidence, that as a condition annexed to the warranty, the mules were to be returned within a week, which admittedly was not done, and withdrew that phase of the evidence from the consideration of the jury.\n3. Vendor and Purchaser \u2014 Contracts\u2014Warranty\u2014Return of Goods \u2014Reasonable Time \u2014 Trials\u2014Questions for Jury.\nWhere a warranty in a sale of goods only provides for the return of the goods to the vendor, if not as warranted, they should be returned by the purchaser within a reasonable time for bim to get redress under tbe terms of the contract, it being for the jury to determine what length of time is reasonable under the surrounding circumstances.\n4. Vendor and Purchaser \u2014 Contracts \u2014 Warranty\u2014Breach\u2014Return of Goods \u2014 Damages.\nUpon -the vendor\u2019s breach of his warranty in an executed agreement for the sale of goods, tbe purchaser may return the goods in a reasonable time, and recover the consideration he has paid for them; or he may retain the goods and recover such damage as he may have sustained arising from the breach of the vendor\u2019s warranty.\nAppeal by defendant from Webb, J., at October Special Term, 1913, of G-astoN.\nThis action is to recover two mules.\nTbe plaintiff testified in substance that be and tbe defendant exchanged mules; tbat tbe defendant warranted bis mules to be sound, and agreed tbat if tbey were not sound tbe plaintiff might return them, and get bis own mules; tbat tbe mules were not sound, and tbat be offered to rescind tbe trade on tbe eighth day after tbe exchange.\nTbe contention of tbe plaintiff is that tbe warranty is one of quality; tbat be bad a reasonable time within which to examine tbe mules; tbat be acted within a reasonable time, and tbat be is entitled to recover tbe mules be originally owned.\nTbe defendant testified in substance there was an exchange of mules between bim and tbe plaintiff; tbat be told tbe plaintiff bis mules were sound as far as be knew, and agreed if be, tbe plaintiff, was dissatisfied be might return them within one week. He also offered evidence tending to prove tbat tbe mules were sound.\nTbe first issue submitted to the jury was as to tbe ownership of tbe mules by.tbe plaintiff, upon which bis Honor charged, among other things:\n\u201cIf you find tbat there was a contract, and if you further find tbat there was no fraud in bringing about such contract, yet if you find tbat there was a breach of warranty as to quality\u2014 tbat is to say, if tbe defendant gtiaranteed tbat tbe mules which be offered to sell were sound wben they were not sound \u2014 then you would answer tbe first issue \u2018Yes,\u2019 \u201d and tbe defendant excepted.\nThere was a verdict and judgment for tbe plaintiff, and tbe defendant appealed.\nGeorge W. Wilson for plaintiff.\nMangwm & Woltz and A. G. Jones for defendant."
  },
  "file_name": "0459-01",
  "first_page_order": 507,
  "last_page_order": 513
}