Birdsall Co. v. Palmer

Briscoe, J., delivered the opinion of the Court. The Birdsall Company, a corporation duly incorporated under the laws of the State of New York, but doing business in this State, brought suit on the 29th of October, 1889, in the Circuit Court for Queen Anne’s County, against the appellees in indebitatus assumpsit on the common counts, for the contract price of a machine, known as the Vibrator Separator,, sold and delivered by the plaintiff to the defendants. The case was tried upon ²⁰⁹ the plea of never indebted as alleged. The contract under which the alleged sale was made was in writing, and under seal. ' It is very obscure and confused in its meaning, and contains the following warranty: “ These machines are hereby ordered, purchased and sold subject to the following warranty: That the machines are well built of good materials, and, with proper management, are capable of doing as much and as well as other machines of like size and proportions.

The purchasers agree to carefully follow any directions given them by the Birdsall Company in starting and operating the machinery, and after giving it a fair trial of one week, if it should not work well, to give written notice to the agent from whom it was received, stating wherein it fails, and also to the Birdsall Company, at Auburn, E. T. Reasonable time is to be allowed to get to it and remedy the defects, if any exist, the purchaser hereby agreeing to render necessary and friendly assistance. If it cannot be made to perform as guaranteed, it shall be returned to the place where received, and a new machine given in its place, or the notes and money refunded. But should such failure have been caused by improper management, or neglect of the purchasers to follow directions given them for starting the machine, then they to pay all necessary expenses that have been incurred. Continued possession of the machinery shall be evidence of satisfaction and acceptance.

It is understood and agreed, that if the purchaser does not make full settlement with cash or approved notes for the machine upon its delivery to him, he thereby waives all claims under this warranty. (Eo agent has authority to change this warranty.) Should there be any failure on the part of the Birdsall Company to deliver the machinery at the time agreed upon, the acceptance of the same by the purchaser whenever deliv-' ered shall be. understood as a waiver of all claims for ²¹⁰ damages by .reason of such delay. It is understood and agreed, that the title, ownership, or right of possession of the above described property does not pass from the Birdsall Oo. until settlement is made in full as above agreed." It will appear from the form of action adopted by the appellant that he sought to recover for the value of the machine, and not for damages on the special contract or for breach of contract. The evidence shows that the defendants, on the 30th day of April, 1889, ordered of the plaintiff the machine in controversy, for which they were to