
    STODDARD MANUFACTURING CO. v. MILLER.
    '1'. Settlement — Breach oe Warranty — Waiver.
    By assenting to the correctness of an account for machinery purchased, with knowledge of its failure to comply with the warranty under which it was sold, the buyer waives his rights under the warranty.
    ■2. Sale oe Machinery — Warranty.
    A contract for the sale of agricultural machinery between the manufacturer and a dealer contained a general warranty, followed by the provision that, if a machine should fail to do good work, notice should be given to the vendor, and time allowed to put it in order, and that the use of a machine for longer than one day, without giving notice of any defect, should constitute an acceptance. Held, that the conditions stated were applicable only to machines resold, and not to those that had not been set up or operated.
    3. Written Order — Parol Evidence.
    Parol evidence that, by an order for “two square feeding shafts, 4 ten-hoe drills,” it was intended only to order two shafts for 10-hoe drills, is admissible, in a suit against the purchaser, to rebut the effect that said order might otherwise have upon his contention that drills of the same kind previously purchased were defective.
    Error to Sanilac; Beach, J.
    Submitted October 28, 1895.
    Decided November 5, 1895.
    
      Assumpsit by the Stoddard Manufacturing- Company against Adam Miller and another for machinery sold. From a judgment for plaintiff, defendants bring error.
    Beversed.
    
      E. G. & S. A. Baieoek, for appellants.
    
      Avery Bros. & Walsh, for appellee.
   McGrath, C. J.

Defendants are dealers in farming implements at Minden City. They had had dealings with the Farmers’ Friend Manufacturing Company, and in December, 1892, entered into a written contract with said company -for six harrows, nine 9-hoe Farmers’ Friend drills, and one 10-hoe Farmers’ Friend drill. The agreement contemplated further orders, and prescribed the terms. It granted to defendants the exclusive right to sell in certain- territory, -and provided that defendants should make every effort to extend the trade in the territory, sell no competing machines, -and order as many more machines as the territory might require. It provided that the company would replace defective parts, and furnish repairs at list prices, less 25 per cent. It contained a further provision that—

“The machines furnished under this contract are warranted to be well made, -of good material, and, if properly handled, to do good work. They are to be set up and operated according to directions. If any one fails-, owing to defects or otherwise, notice must be given to the Farmers’ Friend Manufacturing Company, Dayton, Ohio, and-time allowed to put it in order or -operate it. The use of a machine longer than one day, without n-otioe o-f defect, shall be evidence that it is accepted, and this warranty shall cease.
“(Signed) Farmers’ Friend Mneg. Co.,
“By George A. Woodeord.”

On August 23, 1893, defendants, wrote to Woodford a letter as follows:

“Please ship me at w-onts to Min-den City, wo-ne ritestele weel for a drill Two square feeting schafts. 4 ten hoe -drills also -some note blanks for drills. Send it at wonts without daylay.”

Upon receipt of this order the company sent four 10-hoe drills to defendants. S-ome correspondence was-evidently had respecting this shipment, defendants claiming t-hait they had intended to order two shafts for 10-hoe drills, and not to order fo-u-r 10-hoe drills; but defendants; retained the drills. Under the contract these drills were to he paid for in 90 days. Plaintiff -sues as assignee of the account. Defendants set up a breach of the warranty.

In December, 1893, one Quig called upon the defendants for a settlement of the account. Defendants had on hand at that time five of the 9-hoe and four 10-hoe drills. Quig says that there was a partial settlement at that time, but that defendants refused to pay for the goods on hand, but wanted him to carry the articles >on hand over into the next year’s contract, which he refused to do; that at that time no mention was made to 'him 'that the goods were defective, but that the mistake in the letter of August 23d was referred to by defendants. The statement presented at that time describes the goods unsold as “on hand (not settled).”

It seems to be conceded that the drills were not the same as those which had been previously sold to defendants; that a steel frame had been substituted for a wooden frame. Defendants explained this by saying that •“they changed the drill into a steel frame, and put the sprocket in the middle, and put the chain on .the feed shaft, and it springs the shaft in the center, and stops their working.” Defendants’ testimony tended to show th!at they had sold several of these drills, which proved defective, and the parties to whom sold refused to pay for them; that they had tried to remedy this defect, but without success; that when Quig came there they explained the difficulty to him, told him that the drills would not work, that purchasers had refused to pay for them, and that they were useless; that they refused to pay for them, and requested Quig to take them back; that they told Quig that they would in no case agree to pay for them until sold, and that Quig a,greed to carry them until they were sold.

The court instructed the jury that—

“If there wa's an agreement to postpone the payment for these nine implements to the season of 1894, there can be a recovery for the plaintiff for $120 only, and interest from December 19, 1893, to this time. If the extension was made, it would also be a waiver on the part of the defendants as to defects as to workmanlike quality of the implement; that is, the defendants claim that at the time he called attention to his claim for damages, but that at the same time the time for payment was extended. Now, if that was a fact, that would be a waiver of these defects it would take these defects out of the case, if there was an extension of time. If you find as a matter of fact that there was no extension of time for the payment for these nine drills, you will then consider the question of damages. Such damages must be, confined to the nine machines on hand, for the reason that the business concerning this machinery up to that date was settled at that time. If you finid they did not comply with the warranty, and that the agent was notified of these defects, the measure of damages, if any you would find, would be the difference between the contract price of the machines and the actual value of the machines as you shall, find it to be.”

.We think the court misapprehended the effect of defendants'' testimony. The parties did nut arrive at a .settlement in December, 1893. Quig does not sa.y that they did. He .says, generally, that there was “a partial settlement.” If defendant's settled the account as to the goods not on hand, and agreed" to that account, they are concluded thereby. The controversy seems to have been over the drills on hand. Quig was then representing the company. No question seems to have been raised as to his lack of authority. Tf at that time defendants in good faith made the complaints alleged to have been made, and it was agreed that the drills should be carried by the company until sold, a recovery should not have been allowed, irrespective of any formal compliance with the terms of the warranty. Of course, if at that time there was a promise to pay in consideration of an extension of time, and the extension of time was granted, another question would arise; hut Quig does not claim that there wa,s either a promise to pay or an extension of time.

The jury evidently found that there was no extension of time; hut the court, in the course of the trial, clearly intimated that, in the absence of notice under the contract, defendants could not go into the question of the defects in the drills, and restricted them in their proofs upon the question of the depreciated value for that, reason. I-t is evident that the clauses in the contract following- the warranty were imparted into the contract in question from a contract for the sale of an individual machine. It was not expected that defendants would set up and operate these machines or use them. They purchased them to sell again. The restrictions may be applied to drills sold by them, but not to those which had not been set up or operated. Defendants had sold several of these drills during that season, and had been evidently endeavoring to satisfy the purchasers respecting them. The complaint was not ais to a defective part, but was one going to the whole machine, destroying its utility. It was a structural trouble.

As tending- to rebut any presumption that might arise as to the effect of an order given August 23d for four more of the drills complained of, we think that the defendants were entitled to show that a mistake was made in that order.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.  