
    D. M. Osborne & Company, Respondent, v. Frank G. Birdsall, Appellant.
    
      Sale of amachine with warranty — the giving of anote by the vendee for the purchase price, after knowledge of defects therein, is a waiver of such defects.
    
    A contract for the sale of a corn harvester warranted it to he “ well made, of good, material, and if properly set up and operated to do good work.” After the-harvester had been tested and found not to work well the vendee gave his-promissory note to the vendor for the purchase price thereof.
    
      Held,, that the giving of the note operated as a waiver by the vendee of the defects in the machine then known to him.
    Appeal by the defendant, Frank G. Birdsall, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office-of the clerk of the county of Orange on the 8th day of February,, 1900, upon the,report of a referee.
    The action was brought to recover upon two promissory notes,, one for $33 and the other for $100, executed by the defendant to-the order of the plaintiff. The $100 note, which is the one here involved, was given in payment for a corn harvester sold by the plaintiff to the defendant.
    
      Darwin W. Esmond \_Henry W. Ghadeayne with him on the brief],, for the appellant.
    
      A. EL. F. Seeger, for the respondent.
   Woodward, J.:

The plaintiff is engaged in the manufacture and sale of farming implements and machines. The defendant is a farmer, and had, for some years, been engaged incidentally as a selling agent for the plaintiff. On the 22d day of October, 1897, he gave his promissory note to the plaintiff for the sum of thirty-three dollars, eight dollars-of which has been paid, leaving a balance of twenty-five dollars, which is due and unpaid. There is no controversy upon this note and the defendant is willing to permit the judgment as to this note to stand. On the 17th day-of March, 1897,'the parties entered into an agreement in writing, the form evidently being such as was commonly employed by the; plaintiff in selling the machines to its agents, who were in turn expected to' sell them to others at an advance. In the present instance the machine involved was a corn harvester, at the agreed price of $100, which the defendant was' not ■to sell at a less price than $125. The contract contained a warranty that “ this implement is warranted to be well made, of good material, and if properly set up and operated to do good work.” It is then provided that if on starting it it should occur that the purchaser cannot make it work well he must immediately notify the local agent who sold it, or D. M. Osborne & Go., and allow reasonable time for - some one to be sent to put it in order. If it is not then made to do good work it must be returned at once to said local agent at his place of business, and. any payments made thereon will be refunded. Failure to give’ notice or failure to return the implement as aforesaid will constitute an acceptance of the implement. No variation of ■ this warranty, oral or written, will be recognized by us.” . The contract, of which this memorandum of warranty is a part, provides in its last paragraph above the signatures of the parties, that it is fully understood and agreed by both párties that this contract contains the full agreement between them, and that no claim based on verbal agreements shall be set up or recognized by either party.” The com harvester was delivered to the defendant under this contract in July, 1897, and'in the month of August in the- same year it was set up and tried upon a neighboring farm. There seems to be no doubt of the fact that the .machine, from some cause, did not work well, though the learned referee finds as a matter of fact that this was largely due to the fact that there was not sufficiént power in the horses to draw the machine with proper speed and regularity7. Notice was given of the failure of the machine to work properly, and subsequently a second trial' was made in the presence of representatives of the plaintiff, with no better success. This second trial took place in the month of August, and on the twenty-sixth day of October, two months after the alleged failure on the part of the machine to work properly, and with the machine still in his possession, with no offer of returning the' same as provided in the agreement, the defendant gave the note involved in the present controversy. He had not made the payment on the machine as provided in the contract, and the note in suit operated as an'extension of the time of payment, the note falling due one year from date. The plaintiff brought its action to recover upon these two notes, and in answer the defendant set up as a defense that, although the last-mentioned note was made and delivered as alleged in the complaint, “ at the time of mating said note the plaintiff sold to the defendant a certain harvesting machine, known as and called the Corn Harvester, and then and there * * * warranted and agreed that said machine was suitable for and would cut, bind and harvest the crops on the lands of the defendant perfectly, and would work all right, which lands were seen by plaintiff’s agent, representative, who made the bargain in regard to such conditional sale, but that said machine, for the price of which said note was given, was not suitable for, and ■ ■ would not cut, bind and harvest the crops on the lands of defendant properly, and would not work all right, and would not do or perform the work which the plaintiff warranted it would do.” There are some allegations of fraudulent representations, but the evidence before the learned referee who was appointed by consent of the parties to hear the case, does not support the allegation, and the testimony does not accord with the averments of the answer, and the learned referee directed judgment in favor of the plaintiff for the amount of the note. This appeal is from the judgment thus entered.

We are of the opinion reached by the learned referee that the giving and acceptance of the note was a waiver of the defects then known to defendant,” and as there was no proof made or offered of any defects subsequently discovered, the defendant has failed to establish a defense. The authorities relied upon by the referee (Brown v. Foster, 108 N. Y. 387, and Chambers v. Lancaster, 160 id. 342) abundantly sustain the position that the defendant having accepted the machine, knowing the defects which had been demonstrated, must be deemed to have waived these objections when he gave the note in payment, and there being no evidence of any other defects the obligation of the defendant to pay his note cannot be questioned. It is true, of course, that the learned referee did not specifically find an acceptance by the defendant, but his conduct as shown by the evidence is consistent with no other conclusion, and if it were necessary this court would be justified in presuming a finding of acceptance for the purpose of supporting the judgment. ( Wiles v. Provost, 6 App. Div. 1.) The burden of establishing an affirmative defense is upon the defendant, and this has not been done' in the case at bar.

The judgment appealed from should be affirmed, with costs.

■ All concurred, except Sewell, J., taking no part.

Judgment affirmed, with costs'.  