#### Osborne et al. *v.*Everett.

On a contract of sale and warranty of a reaper, with stipulations for notice of defects, and a return of the machine, upon failure of the vendors to remedy the difficulty, a new promise by the vandors that they would make it work, on condition that the vendees would try the machine another year, will operate as a waiver of notice, in the absence of an express agreement extending the original contract for the second year.

On a suit for the value of the machine, still in the vendee’s possession, the supreme court will not reverse, because the court below allowed the defendant to be asked, on the measure of damages, whether this reaper was worth anything for the purpose for which it was made and sold.

May 23, 1888.

Error, No. 106, Jan. T., 1888, to C. P. Northumberland Co., to review a judgment on a verdict in favor of the defendant in an action of assumpsit by D. M. Osborne et al., trading as D. M. Osborne & Co., against Enoch Everett, at May T., 1882, No. 26. Trunkey, J., absent.

This was an appeal from a judgment of a justice of the peace. The pleas were non assumpsit, payment and payment with leave to give special matter in evidence. The case was reversed in the supreme court, before the trial reviewed on this writ, on the question of long or short summons. Osborne *v.*Everett, 103 Pa. 421.

The evidence was to the following effect, at the trial, before Rockefeller, P% J:

On June 23, 1880, D. M. Osborne & Co. sold to the defendant a reaper under the following agreement in writing: “ It is understood and agreed that this machine is warranted to be well built, of good material, and to do first-class work in both grass and grain. Should there be any difficulty in starting or operating the machine, immedi*348ate notice must be given to D. M. Osborne & Co., Philadelphia, or their agent from whom the machine was bought, and reasonable time allowed them to remedy the difficulty. And, in the event of their not doing so, it is to be returned, and a perfect machine delivered in its place or the money or note paid for it refunded. [Signed] D. M. Osborne & Co. [Countersigned] H. B. Aunkst, Agent.”

The defendant claimed that the machine did not work, that he had notified defendants of the fact, and that they had not remedied the defect. Plaintiffs’ reply appears in the charge of the court.

When on the stand, his counsel proposed to ask the defendant whether or not the Osborne reaper was worth any thing to him or any one else, for the purpose for which it was made and sold to him.

Counsel for plaintiffs objected to that part of the offer which limited the question to what the machine was worth for reaping purposes, for the reason that that was not the criterion as to what the machine would be worth, or what the defendant would be obliged to pay for it, and he could defalcate nothing but what it was worth less than what he agreed to pay for it. The question was what it was worth for any purpose, and not what it was worth for reaping purposes.

Per Curiam: If the defendant had kept the reaper without notifying the plaintiff of its defects and had never offered to return it, upon the question of breach of warranty, the question would be, what was the difference between the price to be paid and its actual value for any purpose. But, having given evidence from which the jury may find notice to the plaintiff of the defect and an offer to return, I think it is proper to allow the witness to state whether the machine was of any value for reaping or for the purposes for which it was sold to him. Objections overruled, evidence admitted and exception. [5]

The court charged the jury, inter alia, as follows :

[“ I leave it to you to determine whether or not the reaper in question was built of good material; whether it did first class work in grain, in accordance with the contract between the parties; if there was any difficulty; whether notice was given to the agent from whom the machine was bought; whether reasonable time was allowed D. M. Osborne & Co. to remedy such difficulty and whether, in case they did not remedy it (and the evidence clearly shows that, we think, but that is a matter for you to determine), the defendant offered to return it. These are matters for your determination, and, if you find the facts as stated, then we say to you that the plaintiffs cannot recover.] [6] . . [As I have already stated, it doesn’t seem to be a matter in dispute but that the reaper was not a perfect one and did not do first-class work as it was to do under the terms of the agreement. But the plaintiffs contend that, in the fall of 1880, one Townsend, who has been designated by the wit*349nesses as the state agent of plaintiffs, appeared -in Watsontown where the defendant resided, and there was then a conversation between him and the defendant, in the .presence of Mr. Aunkst concerning this reaper. You will recollect Mr. Aunkst stated substantially that there was an agreement between Townsend and Everett, by which Everett was to keep the machine another year; that Townsend said to Everett they would transfer the machine over to the next year’s sales; that Townsend was to put a new rake-stand on and the contract was extended over for another year. If that was so, then you will have reference to what the original contract was. Then if you should find that there was a subsequent contract made between Townsend and Everett in the fall of 1880; that Everett retained the machine until the season of 1881; that Townsend did furnish a new rake-stand as he agreed to do in the fall of 1880; that Everett, after that made no complaint or gave no notice to Osborne & Co.; that he did not offer to return the machine, but kept it and harvested his wheat crop without making any complaint, then we instruct you that the plaintiffs are entitled to recover. Whether such was the contract between Townsend and Everett is a question for you to determine under the evidence. The defendant contends that such was not the agreement, but that Mr. Townsend told him that according to their original agreement he was bound to keep the reaper over another year; that thinking he was bound to keep it over another year, as alleged by Mr. Townsend, in order to give it a further trial, did so; that Townsend agreed at that time that he would put it in good working order so that it would do work in accordance with the original agreement for the following season; that Townsend never did so; that whatever was done or whatever machinery was furnished in the season of 1881 did not put it in working order, as Townsend agreed; that plaintiffs or their agents not having done this, he was not bound to give any further notice or make any further effort to return the machine. And we instruct you, if you find such to be the case, that the plaintiffs are not entitled to recover.”] [6]

The plaintiff presented these points:

“ 1. It being the undisputed evidence in the case that the plaintiff and defendant agreed, in the fall of 1880, that the reaper should be retained by the defendant, under the warranty, during the harvest of x 881, and that defendant, during that harvest, gave no notice to the plaintiff of defects in the reaper, but retained it and cut his entire crop of wheat of that year, without complaint, and still retains it, under the terms of the warranty, the verdict should be for the plaintiff. ' *Ans.*If these were all the facts, the point is correct, but I cannot say that such is the case, or that the evidence is undisputed, and I refer you to the next point.”

“ 2. It being the undisputed evidence in the case that the plaintiff and defendant, in the fall of 1880, agreed that the machine should be retained by the defendant under the terms of the war*350ranty, during the harvest of 1881, and that the defendant did retain it during that harvest without a return or offer to return it, the verdict, under the terms of the warranty, should be for the plaintiffs. *Ans.*It is for the jury to determine the facts. This would be so if these were all the facts. I have referred you to the evidence on both sides, in the general charge, and I also refer you to the defendant’s second point and the answer of the court thereto.”

The defendant presented the following points:

“ i. If the jury believe, from the evidence in the cause, that there was an express contract between Osborne & Co., and Enoch Everett, that the machine sold was to be a perfect machine and do first-class work, and, upon trial of the same, it proved to be a failure, and not such a machine as was represented, and that Osborne & Co., through their agent, had notice of the fact, there can be no recovery in the case, and the verdict of the jury must be for the defendant. *Ans.*Under the terms of the contract in this case, if the jury find that, upon trial of the machine, it proved to be a failure, and not' such a machine as represented, and that Osborne & Co., through their agent from whom the machine was bought, had notice of the fact, and they did not, after a reasonable time allowed them, remedy the difficulty, and the defendant offered to return it as he contends, this point is affirmed, but I refer you to what I have said in the general charge as to the additional contract in the fall of 1880.”

“ 2. If the jury believe, from the evidence in the case, that, in the fall of 1880, the plaintiffs, by their agent, induced the defendant to retain the machine and try it another year and they would make it work, and that the machine did no better than it did in 1880, and was not remedied by the plaintiffs, the defendant was not bound to further notify the plaintiffs that the machine did not work, and was not satisfactory. That it was a waiver of further notice and the plaintiff cannot recover, and the verdict must be for the defendant. *Ans.*This point is affirmed.”

Verdict and judgment for defendant.

*The assignments of error*specified, 1-2, the answers to plaintiffs’ points, quoting the points and answers ; 3-4, the answers to defendant’s points, quoting the points and answers; 5, the rulings on the evidence, quoting the bill of exception, but not the evidence; and, 6, the portions of the charge within brackets, quoting them.

*P. L. Hackenberg,*for plaintiffs in error.

The defendant relies on the warranty for his defence, and he must abide by the terms of it. The warranty was given with an express condition that the reaper be returned if it did not work satisfactorily. The defendant did not return it, but retained it in his possession. Under such circumstances, he cannot set up as a defence the breach of the warranty. 1 Hilliard, Contracts, 152; Frankenfield *v.*Freyman, 13 Pa. 56.

The defendant having retained the machine and used it, was at least bound to pay what it was reasonably worth. Cothers *v.*Kee*351ver, 4 Pa. 168; Stetson *v.*Croskey, 52 Pa. 231. In Davis *v.*Deckey, 23 Ala. 848, cited in Hilliard, Contracts, 119, Ed. 1872, a clock, sold and warranted, was worthless as a time piece, but the vendee was held liable for the value of the case alone.

Oct. 1, 1888.

*Geo. W. Zeigler,*with him *Lorenzo Everitt,*for defendant in error.

—The machine was worthless for the purpose for which it was sold, and the defendant was not bound to pay for the wood and iron of which it was constructed.

After the agreement to retain the machine for a year conditioned on plaintiffs putting it in good working order, the defendant was not bound to give further notice. Steigelman *v.*Jeffries, 1 S. & R. 477; Borrekin *v.*Bevan, 3 Rawle, 22.

Per Curiam,

Judgment affirmed.