
    James N. Sherwood v. Hamden A. Hecox.
    
      Written order: Promise to give note: Warranty of machine: Damages for non-delivery of note. Defendant having given a written order for a harvester for which he proposed on delivery to give his note for two hundred dollars, and to pay the same in case the machine was answerable to the warranty contained in the order, and to redeliver the machine if it was not, and the warranty clause contemplating the actual trial of the machine in the harvest field, and the machine having been delivered without the note being given or required, and having been tested by defendant and found unsatisfactory and plaintiff notified thereof, it was held, in a suit for damages for refusal to deliver the note, that defendant was not bound to give the note if the machine was found upon trial not to be such a one as he was bound to accept and pay for by the terms of the order.
    
      Heard October 20.
    
    
      Decided October 25.
    
    Error to Allegan Circuit.
    The instrument on which this action was based reads as follows, that portion printed in italics being in writing and the residue printed:
    
      “JET. A. Heeox, agent for Marsh harvester: You will please deliver to me from the factory to Kalamazoo, Mich., care of James H. Sherwood, on or before the 15th day of June, ISM, one Marsh harvester, for which I agree to pay you, or your agent, in cash and notes, on the arrival of the machine at Kalamazoo, Mich., two hundred dollars, as follows: Cash, $-; note for $200.00, due October, 1875; note for $-, due-; note for $-, due-; with interest at ten per cent, per annum, and transportation upon its delivery; providing the machine answers the following warranty. But if it does not, after notice and trial as stipulated in the warranty, I will deliver it free of charge to the above place of delivery. If the machine is paid for by October, 187J/., no interest to be charged.
    
    “For the purpose of obtaining credit, I-hereby certify that I own in my own name-acres of land in the town of -, county of--, state of-, with-acres improved, worth $-, which is not encumbered by *mortgage or otherwise, except $-. I own $-worth of personal property over and above all indebtedness and exemptions.
    “ WARRANTY.
    “This Marsh harvester is warranted to be well made, of good material, and when properly used, not liable to get out of repair; to be a good grain cutting machine, upon which two experienced binders (accustomed to binding on a machine) will bind as much grain in one day as they could on the ground in two days. When the machine is put in operation, if it should fail to perform as warranted, it shall be the duty of the purchaser to notify us immediately of the fact, and to allow sufficient time to send a man and put it in order. Then, if it does not work, and the fault is in the machine, it will be taken back and the money refunded, or that part of it which proved defective will be replaced, or a perfect machine given it its place. The use of the machine cutting five acres shall be. conclusive evidence that the warranty is fulfilled.
    “Dated, May 22, 1871/..
    
    “ Postoffice, Plainwell.
    
    “Notes, when payable, Oct. 1st, 1875.
    
    “Town he lives in, one mile 8. P. of Plainwell.
    
    
      “ County he lives in, Allegan, Mich.
    
    “State, Michigan.
    
    “Section-, range-.
    “ James 1ST. Sherwood,
    
    
      CC '
    
    
      9
    
    “Agent.”
    
      Padgham & Padgham, for plaintiff in error,
    argued that the true construction of said paper .writing is, that it is a conditional sale; that the title to the machine did not pass upon delivery; that Sherwood had the right to test the machine, fairly and fully, and if upon such test it did not operate as so represented in the instrument, he had a right to return it, and in fact tbe contract ^'compelled Mm to return it, or at all events, he was not obliged to keep it; and that the machine was not to be paid for until after it was tried and found to answer the representation. — See Bomberger v. Griemer, 18 Iowa, 477; that until so tested there was no acceptance; that in order to complete the sale, acceptance is as important as delivery. If the plaintiff seeks to recover without proof of acceptance, he must prove that the machine did perform as recommended; in other words, that the defendant was bound to accept: Kellogg v. Nelson, 5 Wis., 125; Ganson v. Madigan, 15 Wis., 144, citing 9 Wis., 146.
    We further insist that from the acts of plaintiff he has put ■his own -construction upon it, and from the fact that no note or money was demanded until after the machine had been tested, it would seem that he did not consider it an absolute .sale or delivery, but waited until after the machine had been ■tried, and then insisted that he would not take the machine back “ unless there was something wrong with the machine.”
    But suppose this to have been an absolute sale with warranty, with an express agreement that vendee may return the property if it does not answer the terms of the warranty, then upon such return, or offer to return the property, whether the vendor receives it or not, the vendee has a right to sue for the price if that has already been paid. — See Thornton v. Wynn, 12 Wheat., 193; Cary v. Gruman, 4 Hill, 625; Voorhees v. Earl, 2 Hill, 288; lightburn v. Cooper, 1 Dana, 273; Kase v. John, 10 Watts, 107; 1 Pars. on Con., 474-5, and cases cited; when there is a breach of such warranty, the vendee may return the article purchased and recover the price paid: Aultman v. Thirser, 34 Iowa, 275.
    Now in the case at bar, it appears from the testimony of both plaintiff and defendant, that defendant offered to return the machine to Kalamazoo,, but plaintiff refused *fco accept it; which we insist amounts to a waiver on the part of plaintiff of a return of the machine and leaves tbe case in precisely the same situation as though it had been actually returned: 30 Iowa, 215; 12 Wheat., 193; 1 Pars, on Cont., 47. If this be so, under the pleadings in this case, why may not the defendant defend against an action brought for the price ? "We insist that he can do so: See 1 Pars, on Cont., 474. And the whole question as to how the machine operated, and whether the same was fairly tested, and whether it fully answered the ^representations in the instrument or not, should have been submitted to the jury, for them to determine under the evidence in the cause.
    
      Severens, Boudeman <& Turner, for defendant in error.
    The action is brought for the refusal to give the note contracted to be given for the machine: See Stoddard v. Mix, 14 Conn., 12; Gibbs v. Blanchard, 15 Mich., 305.
    The contract upon which the action was based, when analyzed, is as follows: The defendant agreed to purchase and the plaintiff to deliver at Kalamazoo on or before the 15th day of June, 1874, one Marsh harvester, and defendant agreed to pay, on the arrival of the machine at Kalamazoo, the sum of two hundred dollars, by giving his note for that sum and interest, payable October 1, 1875, together with the cost of transportation. There was a warranty on the part of the plaintiff that the machine should be well made, of good material, and when properly used not liable to get out of repair; that it was a good grain cutting machine upon which two experienced binders, accustomed to binding on a machine, will bind as much grain in one day as they could on the ground in two days. If it did not perform as warranted, the purchaser was to notify the seller at once, and the seller was to have sufficient time to put it in order. Then if it did not work, and the fault was *in the machine, the seller was to do either of three things: (1) To take back the machine and refund the price; or (2) To replace the defective part; or (3) Give a perfect machine in its place. Five acres’ cutting was to fill the warranty. There was a stipulation in the contract that if the machine did not fill the warranty, after notice and trial, the purchaser would return the machine to Kalamazoo. This last term in the contract was applicable and operative if the election of the warrantor was to take back the machine under the first method of answering to his warranty.
    
      The performance of the warranty was not a condition precedent to the plaintiff’s right to receive the note and the defendant’s obligation to give it. The warranty gave rise to independent obligations on the part of the seller, which, if not complied with, would lay the ground of an action against him. The defendant, by the contract, was to give his note for the machine on its delivery at Kalamazoo. Whether the warranty would be answered could not then be known, and the contract contemplated subsequent trial, notice and election and performance of warranty in one of three different ways, as the seller might elect, only one of which was by a return of the purchase price. The parties specifically stipulated in respect to the terms of the warranty. A breach of the warranty did not entitle the purchaser to rescind the contract. The warranty was express, and provided distinct consequences in case of a breach.
    The question whether a term in a contract is a condition precedent to the taking effect of the defendant’s obligation, depends upon the priority in the order in which the terms of the contract are to be complied with, and this is to be determined by the proper legal construction of the contract which the parties have made: Campbell v. Jones, 6 T. R., 570; Goldsborough v. Orr, 8 Wheat., 217; Pordage v. Cole, 1 Wm. Saunders, *320 a; 2 Pars, on Cont. (3d ed.), 40-1, note's k and 1; 5th ed., 528-9, notes q and r.
    The fact that some of the terms of this contract are introduced by a proviso does not alter the construction of it. “Words of proviso and condition will be construed into words of covenant, when such is the apparent intention and meaning of the parties:” 2 Pars, on Cont., 23 (3d ed.); 511 (5th ed.); Chitty on Cont., 93 (10th Am. ed.).
   Graves, J.:

On the 24th of May, 1874, Hecox called on Sherwood, who was a farmer living a few miles from Kalamazoo, and proposed that he should give him an order for a “Marsh harvester,” and after some talk, Hecox produced a printed blank for the order, filled it up and Sherwood signed it, but Hecox did not. It was addressed to “E. A. Hecox, agent for Marsh harvester.” The general form of the blank was that of an order on the manufacturers, but as printed it contained several provisions which might or might not be applicable, and some of which could hardly stand together at' all in any one case. It was meant to be fitted to bargains by filling in what should be necessary, and striking out every thing inconsistent.

At the foot a place was indicated for the agent’s signature, and just above the place' for signing, and separate from the body of the blank, was a collection of specifications in very small type, but under the head of “warranty,” printed in large and distinct type. As the paper was left to read by Hecox, it was in terms inconsistent and ambiguous. It purported to order a machine to be shipped to Sherwood at Kalamazoo, on or before June 15th, and stated that on its arrival there he would give his note for two hundred dollars, to fall due in ■October, 1875, with interest at ten per cent., in case the machine were answerable to the underwritten warranty, and would re-deliver it at Kalamazoo at his own cost if not answerable to the warranty, and the ^specifications under the head of warranty implied that the machine should be subjected to actual test in the harvest field. There was also a specification that if the machine failed, notice was to be given to Hecox.

It was evidently contemplated that the machine should be tried in the harvest then close at hand. Some of the specifications were inapplicable, and should have been erased. The parties were not governed by the literal terms, and disregarded some and waived others.

The machine was not shipped to Kalamazoo, but was delivered at Sherwood’s residence, and at that time the note was not offered nor required. Sherwood was allowed to go on and test the machine without any claim'by Hecox that the note should be given first. He did test it and found it a failure. He caused Hecox to be notified, and boxed up the machine as when delivered to him, set it one side and completed his harvest by other means. Hecox came on and Sherwood offered to re-deliver the machine at Kalamazoo, but Hecox refused and demanded the note, claiming he was entitled to it whether the machine was good or bad. Sherwood refused to give the note, and Hecox brought this suit during the time the note was to run, to recover his damages for its not being given. Sherwood gave no notice of recoupment, but claimed that he was not bound to give the note at all. The court was of opinion that he was required to give the note, and that if he had any defense at all it was by way of recoupment, and having failed to give notice of that defense, Hecox was entitled to a verdict for the amount of the note, with interest at ten per cent, to the time of trial, and under the judge’s direction the jury so found. We think the court erred. Hpon a fair view of the whole-transaction, we think it was understood that Sherwood should not be bound to pay for the machine if it failed to perform, and the undisputed facts show a substantial failure. The giving of the note was deferred until the trial of the machine, and after its failure, Hecox waived re-delivery at Kalamazoo, and the transaction was at an *end. Sherwood was not bound to keep it and pay for it, and hence was not bound to give security to pay for it. It was not such a machine as he had agreed to give his note for, and there was no consideration for the note.

The judgment must be reversed, with costs of both courts,, and a new trial ordered.

The other justices concurred.  