Heater Company v. Paxville School District

May 12, 1915. The opinion of the Court was delivered by The dissenting opinion of MR. JUSTICE WATTS fully sets forth the facts of this case and they need not be twice stated.

It is doubtless true that where a buyer has the opportunity to inspect his purchase before its acceptance he may be held to have waived any defects that were apparent, but here the facts complained of could be made to appear only by actual use. After actual use the defects now complained of were not called to the attention of the plaintiff for a long time, but this is explained by the defendants by saying that they were making every effort to make a fair trial and give the plant the fullest opportunity to do its work under its guarantee, i. e., that it would satisfactorily heat the building.

There is a suggestion, but no proof, that the trouble was that there was a want of expert management of the heating plant. Can it be said that a heating plant for a country school that required expert management was satisfactory? There was no attempt to show that expert management could have been expected or was available. It is not contended that the school did receive that for which they contracted, to wit, satisfactory heat. The defendants then called for and offered to pay for an expert of the plaintiff's own choosing. The expert went to the school, but did not remedy the defect. The defendants gave the plaintiff every opportunity to make its plant work and the plaintiff did not do it.

If the rights of third parties had intervened, a different question would have been presented as in the recent case of Gibbes Machinery Company v. Hamilton, 99 S.C. 57,84 S.E. 296. No such question is presented here. If the plaintiff were in any worse position than it would have occupied, then estoppel might have arisen, but no such change of position is pleaded or proved and we do not see the ground for estoppel. Waiver is ordinarily a question for the jury, and we do not see that it has become a question of law here so as to authorize the Judge to declare as a matter of law that the defendants have waived the question of failure of consideration.

The defendants further set up damages for the failure of the guarantee. The defendants had the right to pay the note and bring suit on the breach of the guarantee, or they had the right to set it up in this action. See Kirven v. Chemical Co., 77 S.C. 493, 57 S.E. 424.

There was evidence to sustain the claim and the judgment is affirmed.

Inasmuch as the verdict of the jury practically set aside the contract as broken, and defendant recovered judgment for all that had been paid thereon, the plaintiff should be allowed to remove the useless heating plant, provided the building be left in substantially as good condition as it now is.

MESSRS. CHIEF JUSTICE GARY and JUSTICES HYDRICK and GAGE concur in the opinion delivered by MR. JUSTICE FRASER.