Action to recover the price of certain merchandise sold defendant by plaintiff under a written contract. Certain issues were submitted to the jury. From the judgment rendered, plaintiff appealed.
The jewelry was sold to defendant under the terms of a written contract, the execution of which was proven and the contract was introduced in evidence. According to the terms of this contract the defendant waived all right to claim that the goods did not come up to sample or were not according to order, unless defendant complied with the terms of the warranty and exchange in the contract. According to the terms of this obligation the plaintiff was entitled to notice of any alleged defect in the goods as to quality and to be given an opportunity to remedy and deficiency before defendants could repudiate the entire contract. This is a condition precedent to any action or counterclaim upon the part of the defendant looking to a recovery for a breach (44) of the warranty upon its part. Shephard v. Larkin, 79 Mo., 264. The contract of sale may fix conditions precedent to the existence of any rights under the warranty, if they are reasonable. A failure by the buyer to comply with such conditions is fatal to his remedy for a breach of the warranty, whether he institutes an action himself or sets up the breach in defense to an action for the purchase money. This is substantially what is held by the authorities. 30 A. E. (2 Ed.), p. 199, and cases cited; Nichols v. Wyman, 71 Iowa 160;Furneaux v. Esterly, 36 Kan. 539. Not only does the answer fail to set up any such defense, but defendant's own evidence shows that no complaint whatever of any defects in the jewelry was ever made by defendant from the date of the receipt of it to the time of the trial. On the contrary, on 16 June, 1902, defendant notified plaintiff that "goods just
received and found all O. K." Independent of any contract, the law would not, after such notice to plaintiff, permit defendants to keep jewelry in possession for more than a year without further complaint to plaintiff as to quality or quantity and then defend upon the ground that the jewelry did not comply with the contract. In admitting evidence of a breach of warranty as to the quality of a few of the articles sold, over the several objections and exceptions of the plaintiff, his Honor erred, as it plainly appears that defendant made no such complaint, and did not pretend to have complied with the terms of the contract relating to warranty and exchange, and no such defense is pleaded in the answer. The real and only defense set up in the answer is to the effect that the defendants were induced to enter into the contract by the false and fraudulent representations of plaintiff's agent. Yet the record discloses that no issue was submitted to the jury embodying such defense, and no evidence whatever appears in the record tending to support it. The plaintiff specifically excepted to the submission of the seventh issue. We think this exception also well taken. The issue is in these words: "What sum, if any, is due the defendants by reason of (45) defendants' counterclaim?" This issue presupposes that the allegations of the "further defense" pleaded in the answer have been established. These allegations are not pleaded as a counterclaim, but more properly as a "defense." If the defendant should be able to make good such allegations, then it could recover as a counterclaim such damages as it has sustained, which in the last paragraph of the answer are set out. But it is plain that before he can recover the $13 damages he must prove the facts alleged in the first and second paragraphs of his further defense.
We do not think the case was tried upon the issue raised by the pleadings.
New trial.
HOKE, J., concurs in result.
Cited: Main v. Field, 144 N.C. 309; Piano Co. v. Kennedy, 152 N.C. 197;Mfg. Co. v. Lumber Co., 159 N.C. 611; Oltman v. Williams, 167 N.C. 314;Guano Co. v. Livestock Co., 168 N.C. 447; Frick v. Boles, ib., 657;Farquhar v. Hdw. Co., 174 N.C. 373; Poe v. Brevard, ib., 715.