#### FRICK CO. v. BOLES.

(Filed 14 April, 1915.)

1. Contracts — Breach of Warranty — Conditions—Compliance.

Where the seller of certain machinery sues upon notes given for the balance of its purchase prices, and the defendant alleges a counterclaim for damages upon a breach of warranty, expressly providing that notice of a failure to satisfy the warranty should be given the plaintiff in five days, affording him opportunity to make necessary changes and allowing the defendant to return the machinery if not made to conform to the warranty; and it appears that the defects complained of were apparent and discovered by the defendant within the five days specified, and he did not notify the plaintiff thereof, which he had ample opportunity to do, but kept the machinery and did not complain until action brought, the defendant cannot successfully rely upon the breach of the warranty, and judgment thereon should be tendered in the plaintiff’s favor.

2. Contracts — Breach of Warranty — Conditions—Pleadings—Proof—Issues.

Where a warranty in a contract for the sale of goods requires that notice of a failure of the goods to satisfy the warranty be given the seller in five days, etc., an issue as to the reasonableness of the notice should not be submitted to the jury, in an action on the warranty, in the absence of allegation and proof thereof, and when defendant knew of the breach within the five days.

Appeal by plaintiff from Lyon, J., at August Term, 1914, of Stjbby.

Action to recover the balance due on notes executed for the purchase price of certain machinery and to subject certain property conveyed to the payment thereof.

On 25' June, 1908, the plaintiff through its agent, Dellinger of Salisbury, together with E. A. Griffith of Winston-Salem, sold to the defendant Boles a portable engine and thresher, the purchase price to be $875. The machine was delivered on 6 July, 1908, and the defendant paid cash $100 at the time of the delivery, and executed three notes of $194, all dated 6 July, 1908, and due as follows: 1 November, 1909, 1 November, *6551910, and one note for $193 due 1 November, 1911, and also a deed of trust in which the defendant secured said notes by the conveyance of the engine and attachments and the thresher and attachments for which the notes were executed as purchase money. It was admitted by the plaintiff that in addition to the $100 cash, that the defendant Boles had paid all of the purchase-money notes except $194 due 1 November, 1910, and on this note he had paid 13 April, 1911, $27.92, and on 22 May, 1911, he had also paid $38.96, and also a further unpaid note for $193 due 1 November, 1911.

The material parts of the contract of sale are as follows:

Erick Company makes the following warranty with respect to machinery above mentioned, towit:

1. That it is well built, of good material, and when properly operated will, under like conditions, perform as well as any other machinery of the same size and rated capacity.

2. If after notice as hereinafter provided, and opportunity given to make machinery fulfill terms of warranty, it fails to make said machine or attachment, or defective part thereof, perform according to contract, it agrees to take back such machine or attachment, or defective part, and at its option refund the money, notes, etc., received therefor, or replace the same.

3. If any part of the machinery proves to be defective within six months after being put into operation, it will furnish a duplicate thereof free, except freight, if said part is properly presented to agent through whom purchased, or at factory, and such defect clearly appears to be due to workmanship or material.

The purchaser agrees as follows, towit:

(¿) If machinery does not fulfill terms of warranty, to give notice in writing to the agent through whom purchased, and by registered letter to Erick'Company, Waynesboro, Pa., within'five days from first putting-same in operation, stating -in what respect said machinery fails to perform. If defects reported are such as can be- remedied by purchaser, Erick Company may, by letter, suggest remedy. If such purchaser still fails to make same perform, he will immediately notify Erick Company again, at Waynesboro, Pa., by telegram or registered letter, and allow reasonable time to remedy defects, rendering at all times friendly assistance.

(b) To return machinery to place where received, if Erick Company fails, after notice as above, to make same fulfill terms of warranty.

(c) If machinery is used longer than five days from first putting same in operation, without notice of failure to fulfill warranty as required in paragraph (a) above, or if used at all after Erick Company is alleged to have failed to remedy defects, it shall operate as an acceptance of same and as a fulfillment of the terms of warranty.

*656Tbe jury returned tbe following verdict:

1. In what amount is the defendant indebted to the plaintiff ? Answer: “$160.61, witb interest on same from 22 May, 1911, and $193, witb interest on same from 6 July, 1908.”

2. Is tbe plaintiff entitled to tbe possession of tbe property? Answer: “Yes.”

3. Did tbe defendants give notice in writing to tbe agent tbrougb wbom be purchased tbe machinery and by registered letter to tbe plaintiff at Waynesboro, Pa., within five days from first putting same in operation, stating that tbe machinery was defective, and in wbat respect it was defective, and asking tbe plaintiff to remedy tbe defect? Answer: “No.”

4. If so, did plaintiff, after such notice from defendant, induce tbe defendant to keep and operate tbe machinery and try to remedy such defects? Answer: “No.”

5. Was five days a reasonable time in which to test tbe machinery delivered to defendant ? Answer: “No.”

6. Did tbe machinery delivered by tbe plaintiff to defendant come up to tbe specifications and requirements of tbe written contract ? Answer: “No.”

7. What was tbe difference between tbe value of tbe machinery as delivered to defendant and its value, had it come up to contract? Answer: “$200.”

The plaintiff excepted to tbe submission to tbe jury of tbe fifth, sixth, and seventh issues.

Tbe plaintiff moved for judgment on tbe first, second, third, and fourth issues, which was refused, and it excepted.

Judgment’was entered upon tbe verdict, and tbe plaintiff appealed.

Watson, Buxton & Watson, and Winston & Biggs for plaintiff.

J. II. Folger for defendant.

AlleN, J.

There was error in submitting tbe fifth issue to tbe jury, because there is neither- allegation nor proof that tbe time provided in tbe contract was not a reasonable time for tbe examination of tbe machinery purchased, and tbe question as to whether five days is a reasonable time in contracts like tbe one before us does not arise.

On tbe contrary, tbe evidence introduced by tbe defendant shows that be knew of tbe defects of which be now complains, if they existed, on tbe first day tbe machinery was operated, and that instead of its condition improving, it grew worse.

Tbe defendant himself testified “that Dellinger, tbe agent, was present when tbe machinery was set up; that tbe machine cut tbe grain of tbe wheat as it threshed, and defendant told him about it; Dellinger said be would remedy that; be took out one of tbe concaves, and after this was *657dome be discovered that tbe wheat was left in tbe straw and it would go out of tbe gin with tbe straw and chaff to some extent; tbat be ran tbe machine, but it got worse; tbe engine would not pump; it was bard to make it steam; tbe center crank was always bending; tbe pump would not force water into tbe boiler”; and tbe brother of tbe defendant testified “tbat tbe machine did not do good work at tbe start; tbat be beard bis brother tell Dellinger tbat it did not work, and be saw him take out tbe concave and tell him tbat it would get better; but in tbe opinion of tbe witness, it got worse, and never threshed more than half of tbe wheat a machine should thresh; it would get hot and stop, and a good deal of time was wasted; it didn’t have tbe power; tbat be threshed bis wheat tbe second season and be could see no difference; it wasted tbe wheat.”

If, therefore, tbe defendant knew within tbe five days provided for in tbe contract tbat tbe machinery did not fulfill tbe terms of tbe warranty of tbe plaintiff, it became bis duty to notify tbe plaintiff, as be bad agreed to do, in order tbat tbe plaintiff might make repairs or supply him with new machinery, and upon failure of tbe plaintiff to perform this duty, be agreed tbat be would return tbe machinery.

Tbe jury has found without objection upon tbe part of the defendant tbat be failed to give this notice, and if so be cannot under the authorities have relief upon bis alleged breach of warranty. Moore v. Piercy, 46 N. C., 131; Main v. Field, 144 N. C., 307; Piano Co. v. Kennedy, 152 N. C., 197; Robinson v. Huffstetler, 165 N. C., 459; Oltman v. Williams, 167 N. C., 314.

In Robinson v. Huffstetler, supra, tbe Court, after citing with approval 35 Cyc., 437, and Mfg. Co. v. Lumber Co., 159 N. C., 510, says: “It seems, 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, that 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”; and in tbe later case of Oltman v. Williams, “It is well settled tbat a party relying upon and setting up a written warranty of quality in tbe sale of personal property is bound by tbe terms of tbat warranty and must comply with them in order to be entitled to redress in an action to recover tbe purchase price. Bank v. Walser, 162 N. C., 54; Main v. Griffin, 141 N. C., 43; Robinson v. Huffstetler, 165 N. C., 459.”

Not only did tbe defendant fail to give notice to tbe plaintiff, but it appears from tbe record tbat fifty-seven letters passed between them, beginning in November, 1908, and ending in September, 1911, and tbat in no letter written by tbe defendant did be make complaint that tbe machinery did not satisfy tbe terms of the warranty. 'He repeatedly re*658quested indulgence upon bis notes, made frequent promises to pay, and represented tbe machinery to be in good condition. He wrote tbe plaintiff on 25 November, 1908: “I will certainly pay you if you can wait on me; if not, you will bave to take tbe machine. It is in good condition.” On 9 January, .1909 : “I hope tbe company will wait on me a while longer. Tbe machine is in good shape and was not used but a short time.” On 22 January, 1909 : “I am not in shape to pay out now, but if you will give me a chance I will certainly pay you; and if you can’t wait, here is the machine in good shape, well cared for, nothing broken in any way.” On 1 November, 1909 : “Do' the best you can for me, for I am in a very close place for money. The machine is in good condition, well cared for.” On 3 January, 1910: “Hope you can wait on me a little while longer. The machine is in nice shape, in good condition.”

It also appears from the evidence of the defendant that the thresher was burned in 1910 and that he collected the insurance money of $150, and he only claims to have paid $100 of the insurance to the plaintiff, and that since the commencement of this action he sold the engine and recommended it “good of its kind” to the purchaser.

If, therefore, the machinery did not satisfy the terms of the warranty, and the defendant knew of the defects within the five days stipulated in the contract, and if he failed to give notice to the plaintiff in order that it might make such changes as were necessary, and if the contract required the defendant to return the machinery if such changes were not made, the defendant cannot now, after retaining the machinery three or four years, without complaint, rely upon a breach of the warranty; and it was therefore error to submit the sixth and seventh issues to the jury and the plaintiff was entitled to judgment upon the first, second, third, and fourth issues.

Keversed.