(209 P.) & Bremer Co. v. Stone, 89 Or. 360, 366, 171 | tion of defendant to return the machine bePac. 569, 174 Pac. 152; 24 R. C. L. 250; came active as a limitation upon defendant's Nave v. Powell, 52 Ind. App. 496, 96 N. E. ordinary legal remedies accruing upon ac395; Consolidated Wagon & Machine Co. v. count of plaintiff's failure to deliver the maBarben, 46 Utah, 377, 150 Pac. 949; J. A. chine described in the contract. Fay & Egan Co. v. Crowell, 182 N. C. 532, 109 S. E. 562; Wilson v. Nichols & Shepherd Co., 139 Ky. 506, 97 S. W. 18, 29 Ky. Law Rep. 1128. In the case of Feeney & Bremer Co. v. Stone, 89 Or. 360, 171 Pac. 569, 174 Pac. 152, Mr. Justice Harris said: "Generally speaking, the parties to a contract for the sale of personal property have a right to agree that a defined remedy shall be exclusive; but in the absence of language evidencing an intention to make a given remedy, like the one in question here, exclusive of all others, it is treated as cumulative and permissive rather than exclusive and mandatory; and hence the buyer is usually permitted to avail himself of the special remedy; or, if he chooses, he may accept the property and recover damages for a breach of the warranty." In the contract under consideration this language was used, 66 # We are to return the machine to you and the amount we have paid for freight from your factory to Astoria, Oregon, is to be refunded and this order canceled," indicating an intention of the parties to create an exclusive remedy in favor of the defendant, in the event of a breach to which the language quoted re ferred. Where, however, the special remedy in favor of the buyer refers to particular breaches only, the buyer still has his remedy in damages for breaches as to which no special remedy is agreed upon. 24 R. C. L. 251. [5] Plaintiff contends that the provision for a return of the property referred expressly to all the warranties contained in the contract of sale, and cannot therefore be deemed to except from its operation any one of the vendor's warranties. That provision obviously was intended to protect plaintiff against liability for defects and imperfections that might develop when the machine was placed in operation, and which were not discovered previously, in spite of the exercise of reasonable care in the selection of materials and in the manufacture and construction of the machine. The language of the stipulation does not refer to defects or failure of warranty that may arise subsequent to a test, for which provision is made in the contract, nor to failure of the obligation of plaintiff to furnish a machine corresponding to the description in the contract, and does not restrict defendant's remedies or define the same in case of breach in those particulars. Substantial performance by plaintiff of the undertaking of the latter to furnish a machine that corresponded to the description in the contract was contemplated and required before the obliga Defendant agreed that if plaintiff delivered to it a machine as specified and described in the contract, and which required a test to disclose that it was not what it appeared to be, defendant would, when the required test developed incurable defects, return the machine and terminate the contract. The conditions upon which the obligation of defendant under that agreement were to become active were not present until the plaintiff delivered to defendant a machine corresponding to the description in the contract, and until that time the obligation of the defendant did not arise or accrue. For defects that developed in a machine that answered the description in the contract, while the same was being tested and which plaintiff was unable to remedy, and make the machine produce the quantity of material warranted, the return of the machine was the only remedy available to defendant; but for failure of plaintiff to perform its contract in other respects, there was open to defendant the ordinary remedies afforded by law in like cases for the breach of contracts for the sale of personal property. The provision limiting the remedy of defendant to a return of the machine was for the benefit of the plaintiff in respect to the sale of a machine manufactured by it, and should not be extended to embrace situations not clearly comprehended by its language. It was established by the evidence that the machine delivered failed in substantial and vital particulars to correspond with the description in the contract; that it was apparent, without any testing, that it did not have the warranted capacity and was insufficient, mechanically and structurally, all of which was admitted by plaintiff before attempting to test or operate the machine; that plaintiff altered and strengthened the machine, and tested and operated it, not for the purpose of developing possible hidden defects, but for the purpose of rendering a machine confessedly different from, and inferior to, the one ordered, capable of producing the character and quantity of material the one ordered was designed to produce. The evidence also strongly tended to show that the attempts to strengthen the machine and enlarge its capacity resulted in failure, and at the same time imposed expense upon defendant and involved it in losses that would have been largely increased · by repudiation of the contract and return of the machine. Plaintiff was not entitled to insist that defendant was limited in respect to its remedy by the terms of the contract, unless it first performed the conditions precedent upon its part, and which were essential to impart | duce the minimum quantity of material force and operation to the limitation upon named in the contract was due to the inexdefendant's ordinary remedies. Mine Supply perience and lack of skill of defendant's emCo. v. Columbia Mining Co., 48 Or. 391, 86 ployees, and to an excess of moisture in the Pac. 789; Puritan Mfg. Co. v. Westermire, material used by defendant, and attributed 47 Or. 557, 84 Pac. 797; Case T. M. Co. v. the frequency with which the machine broke Smith, 16 Or. 381, 18 Pac. 641. down to the same want of experience and "Conditions precedent on the part of the lack of skill of defendant's employees, toseller to the duty of the buyer to make a re-gether with the passage through the machine turn must of course be performed; otherwise no duty is imposed on the buyer to make the return." 24 R. C. L. 252. [6] Plaintiff urges that use of the machine by defendant, and the resulting acceptance, constituted a waiver of performance by plaintiff. In actions to recover the purchase price, under the circumstances disclosed by the evidence, the result contended for only arises where delivery is made of an article that does not meet the description in the contract, but is accepted as complete performance of the seller's obligation under the contract, and does not arise when such delivery is accepted under protest and objection, as in this case, that it does not fulfill the con tract. [7] The buyer may, when the seller, as performance of the contract, tenders an article which does not correspond to the description called for by the contract, refuse to accept it, or after delivery, if within a reasonable time, he may return the article and thereby rescind the contract; but if he retains possession of the property, or uses the same in a manner inconsistent with ownership in the seller, without rescinding or offering to rescind, the latter is entitled to recover the On of oversized particles of stone. This evidence was contradicted by defendant. rebuttal plaintiff called the witness, who in its direct case had given the evidence that large stone was permitted to go through the machine, and who produced several pieces of stone, which the witness claimed he had seen pass through the machine while defendant was operating the same. The pieces of stone were offered in evidence, but the court refused to allow their introduction, upon the objection of the defendant that it was not proper rebuttal evidence. Counsel for plaintiff stated that the evidence was offered to show that the machine was substantially as warranted. Without determining the competency or materiality of the evidence for the purpose for which it was offered, it is clear that its rejection had no perceptible influence upon the result of the case. [9] Plaintiff called in rebuttal one John L. Hill as a witness, and asked him the following question: "Q. Are you able to state what effect, if containing more any, wet material than 2 per cent. moisture would have on an asphalt mixing plant?" The court sustained an objection to the contract price, less any damages the buyer question interposed by the defendant on the may have sustained by reason of a breach of the contract by the seller. Steiger v. Fron-ground that the evidence sought to be elicithofer, 43 Or. 178, 183, 72 Pac. 693; Mine ed by the question was not proper rebuttal Supply Co. v. Columbia Mining Co., 48 Or. 391, 86 Pac. 789. Defendant's right to claim damages was not taken away by the provision for return of the machine; the conditions precedent to the application and operation of that provision were not performed by plaintiff. Mine Supply Co. v. Columbia Mining Co., 48 Or. 391, 86 Pac. 789. In the case last cited Mr. Chief Justice Bean said: evidence. The witness later, however, tes tified that if the material was wet, water going into the tank where the asphalt was being heated would cause all the asphalt to boil out of the kettle and would cut down the capacity considerably. (Tr. pp. 517, 518.) Another witness called by defendant testified upon the same subject in effect: Rain or water or condensed steam getting into asphalt will have the effect of making the asphalt bubble and foam and become spongy, and will not adhere to the stone. (Tr. p. 539.) re- Plaintiff, having succeeded in getting before the jury the evidence which he sought to elicit by the question to which an objection was sustained, cannot now complain of the previous ruling of the court. "There is also a provision in the contract that the plaintiff should not be * sponsible for repairs or alterations unless made with its written consent, nor liable for damages on account of delays caused by such repairs or alterations. This stipulation can only apply in case plaintiff complied with its contract. If it did not furnish a mill of the kind and description specified in the contract, and defendant was damaged by reason thereof, it cannot shield itself from liability behind a stipulation in a contract with which it did not comply." [8] Plaintiff in its case in chief gave evidence that the failure of the machine to pro This disposes of the contentions made by plaintiff upon this appeal, and it follows that the judgment of the circuit court is affirmed. BROWN, HARRIS, and RAND, JJ., concur. MCBRIDE, J., concurs in the result. (209 P.) ants are thereby damaged in the sum of $15,097.72. As a counterclaim to plaintiff's complaint, defendant demands such damages and the expenses of repairs and extra machinery, together with the freight charge, making a total of $19,750.08. The reply puts in issue the material portions of the answer. Upon the trial a verdict and judgment were rendered in favor of defendant for the sum of $10,145.47. BEAN, J. (concurring). To the plaintiff's, endeavoring to put the plant in workable suit for the sum of $7,233.25 for the purchase condition, which it would not have been reprice of one Austin portable asphalt mixing quired to pay had the plant been as contractplant after deducting $1,466.75, which de- ed for; and that when properly operated the fendant paid as freight, the defendant, aft- plant could not be made to lay 750 square er denying many allegations of the com- yards of 2-inch asphaltic top, or its equal plaint, pleads in effect that the mixing plant 1,000 square yards of 11⁄2-inch asphaltic top, ordered by defendant from plaintiff did not in 10 hours, the best it would average being correspond with the one described in the or- 433.7 square yards of 11⁄2-inch asphaltic top, der, and in the catalogue of plaintiff (pages or its equal, 325.275 square yards of 2-inch 32 and 33) referred to in the order; that the asphaltic top, and for this reason it required plant was shipped from Chicago, Ill., and de-a longer time to lay the asphalt, and defendfendant had no opportunity to inspect the same; that it was received at Astoria, Or., about May 15, 1919, in a knock-down condition, so that it could not be then inspected; that as soon as it could be assembled, about May 31, plaintiff ascertained that the mixing plant was not a new or complete plant, nor were the machinery and appliances belonging thereto new, but were old and rusted and had been used previously and substantially worn out, and many of the parts would not fit; that the plant was of no value whatever and could not be assembled without addition al parts; that it was not provided with a revolving screen three-fourths and one-fourth mesh with a bin capacity of not less than 41⁄2 yards of two compartments for the holding of sand and gravel; that no such equipment was with the plant so delivered; that the plant did not in any way correspond with the one described in the order and catalogue, but the plaintiff at the time the plant was delivered represented and guaranteed to the defendant that such plant was the plant contracted for and was in first-class condition; that it was agreed that defendant would assemble the plant; that plaintiff would make the same accordingly as required by the contract and place it in first-class condition and make it operate as contracted and would forthwith furnish the screens and bin and otherwise make it fully correspond to the contract and guaranty, all of which was believed and relied upon by defendant; that in order to assemble the plant it was necessary, by reason of the failure of plaintiff to furnish a complete plant, to purchase a large amount of additional appliances, mend bro-machine put in operation, said notice not to ken parts, and make parts fit which would not fit as delivered, all of which the defendant did under the advice and direction of plaintiff; that plaintiff furnished an alleged expert to operate the plant and teach defendant to do so, and in this manner it was attempted to operate the plant on the 1st of June of that year, in laying asphaltic top on roads; that the plant could not be operated by reason of many inherent defects and faulty and too light construction, and the plant became and was a failure, but plaintiff insisted that it could and would make the plant work properly and fulfill the contract of warranty; that defendant expended $3, 203.61 in purchasing additional parts and It appears from the record that the plaintiff sent two different mechanics to endeavor to put the plant in working order, who made efforts so to do until about August 15, 1919. The agents of plaintiff who had charge of the matter endeavor in their testimony to minimize the defects and make excuses for the failure of the plant to do the work. Their correspondence with their superior. the F. C. Austin Company, indicates that there was a failure of the mixing plant to do the work guaranteed in the contract. By accepting the order of defendant for the plant, the plaintiff guaranteed "the outfit to be well made, of good material and free from defects and should any defects in any part or parts develop in six months after arrival at destination you are to furnish the new part or parts free f. o. b. your factory and you are to guarantee the machine when properly operated capable of laying 750 to 1,200 square yards of 2′′ asphalt top in ten hours; you further agree to send a man at your expense to put the machine in operation and teach us to operate it and stay with the outfit not less than two weeks and we agree to notify you when we are ready to have the be longer than fifteen days after machine arrives at destination, we to furnish all the necessary help to operate the outfit and all materials including fuel." This language of the contract, from a form of plaintiff's, is a plain, absolute, and complete general warranty on the part of plaintiff with the defendant that the machine sold by it would be as described in the part of the contract above quoted. Immediately following this general warranty in the contract, there is superadded what may properly be termed a "special warranty," as follows: "If for any cause, when testing the machine defects should develop, you are to have a reasonable length of time to remedy defects, but 138 209 PACIFIC REPORTER limited to ninety days and if you are not able to remedy the defect and make machine deliver the amount of material as herein provided, we are to return the machine to you and the amount we have paid for freight from your factory to Astoria, Oregon, is to be refunded and this order canceled." that upon the delivery and assembling of the (a) The machine furnished was old and (b) Oil heating burners were not placed on the side, but had been at one time, and were changed to rear corners of machine. (c) Screw conveyor under pug mill not furnished; had to hoe mixture from a chute into trucks. (d) Tailing chute would not fit and had never been in place. (e) Chute from hot elevator to screen would not clear chain driving screen; new one fitted. (f) Pug mill was driven by chains, constantly breaking, aș they appeared to be too light for the load they were transmitting. (g) Air compressor omitted, but agitation (h) Kinney asphalt pumps were shipped, three-way valve, nor steam jacket piping. Defendant had to place extra man to dip asphalt. (i) Bin capacity was only 12 yards instead of 4 or 5 yards, thereby limiting screen to such small size that it was practically worthless for intended purpose; also necessitated hand proportioning of mix. (j) A direct weighing scale was furnished, but bin was hung so that it was useless, necessitating dividing weight desired by 3.74; i.e., if you had 3.74 pounds in measuring box, it would only register 1 pound on the scale. The plaintiff was engaged in manufacturing and selling Austin portable asphalt mixing plants. In construing the warranty, the position of the parties, the general conditions, and surrounding conditions should be taken into consideration. The last part of the stipulation quoted, which we will term the "special warranty," refers more particularly to the remedy of defects that might develop in testing the machine as to some parts thereof which could in the ordinary course of such business be replaced and remedied, and to the time for making such ordinary adjustments and to the testing of the mixer, and not to the general make of the machine, or the material therein or its dura-pipes were not left in kettles. bility. The contract does not contain a clause to the effect "that a certain specified but did not fit to machine, or pipe with use of the machine will constitute conclusive evidence that it satisfies the warranty," frequently inserted in such contracts. The warranty is positive and unequivocal that the outfit is to be "well made, of good material and free from defects." Plaintiff guaranteed "the machine when properly operated capable of laying 750 to 1,200 square yards of 2" asphalt top in ten hours." The contract contains no stipulation that the use of the machine for a certain time or failure to return the same shall be deemed an acceptance of the plant, or indicate that it was the intention of the contracting parties that in the event the machine failed to do the work guaranteed the return thereof to plaintiff and the repayment to defendant of the freight money should be the exclusive remedy of defendant. Taking the contract by its four corners, it does not show that the parties intended to agree that a rescission or return of the machine should be the only remedy of defendant in case the mixing plant did not do the work guaranteed, or did not comply with the contract. It is conceded that notice of the failure of the mixing plant to meet the requirements was given to plaintiff and acted upon by it The contract provided that payment therefor was to be made "within ten days after plant is in operation" and also, "should any defects in any part or parts develop in six months after arrival at destination, you are to furnish the new part or parts free." Ninety days' time is the only limit for the plaintiff to remedy defects. All the particulars specified in the contract considered together do not express an intent to limit the warranty to the time of acceptance The last-quoted clause is of the machine. not a limitation of defendant's remedies. The testimony tended strongly to show The plaintiff, knowing that defendant had entered into contracts with Clatsop county to construct certain highways therein, necessitating the laying of fully 36,685 square yards of 11⁄2-inch asphaltic top, and that none of this top had been laid and defendant had no machine with which to lay this material, unless it employed the one in question, urged defendant to try out this machine, promising that plaintiff would make it comply fully in all respects with the one ordered, and that plaintiff would furnish and install new for the worn parts and reconstruct the machine in all respects without cost to defendant. Thereupon, plaintiff undertook to carry out these suggestions, but after operating the machine for about 40 days wholly failed, and gave it up. The language of Mr. Justice Harris in Feeney & Bremer Co. v. Stone, 89 Or. 360, 171 Pac. 569, 174 Pac. 152, is applicable to the present case and places the state of Oregon in the class with the great weight of authority holding as in the Feeney & Bremer Case. In that case it was "expressly guar anteed" that if the hoist "would not stand up to the work and accomplish the purpose of the defendant," and that if the hoist (209 P.) Poulton v. Latti would not work plaintiff would make the [er v. Starkin, 1 H. Bl. 17; same do so, and if the machine would not more, 9 Barn. & Cres, 359; Pateshall v. Tranwork the plaintiff would charge the defend- ter, 3 Adolph. & Ellis, 103; 2 Smith's Lead. ant nothing therefor. At page 366 of the Cas. 15, 17. * * When a seller, in addiopinion (171 Pac. 571) it is said: tion to a warranty of property, makes a promise to take it back if it does not conform to the warranty, we cannot hold that such superadded promise rescinds and vacates the contract of warranty. We are of opinion that, in such case, the buyer has, if not a double remedy, at least a choice of remedies, and may either return the property within a reasonable time, or keep it and maintain an action for breach of the warranty." "The plaintiff argues that the parties have by the agreement, alleged in the answer, limited the defendant's remedy for a breach of the warranty to the right to decline to pay for the machine, and that, therefore, Stone is not entitled to recover damages for a breach of the warranty. If by the stipulation 'the plaintiff would charge the defendant nothing therefor' is meant that the defendant could refuse to accept the hoist, then the stipulation added nothing to the rights of the defendant since the law gave him the right to rescind the contract and return the machine within a reasonable time after delivery, for it must be remembered that the parties contracted for a machine which was not yet in existence when they made the agreement: Steiger v. Fronhofer, 43 Or. 178, 183 (72 Pac. 693); Lenz v. Blake, 44 Or. 569 (76 Pac. 356). If, on the other hand, the parties intended to agree that the defendant could keep the hoist without paying for it if it did not work, it constituted an additional rather than an exclusive remedy. Generally speaking, the parties to a contract for the sale of personal property have a right to agree that a defined remedy shall be exclusive; but in the absence of language evidencing an intention to make a given remedy, like the one in question here, exclusive of all others, it is treated as cumulative and permissive rather than exclusive and mandatory; and hence the buyer is usually permitted to avail himself of the special remedy; or, if he chooses, he may accept the property and recover damages for a breach of the warranty. There is nothing to indicate that the parties intended that the right not to pay should be the exclusive remedy." Therefore it has become the settled law in this state that in the absence of language evidencing an intention to make a given remedy exclusive of all others, it is treated as cumulative and permissive. Feeney, etc., v. Stone, supra. See Williston on Sales, § 607, and Massillon Engine Co. v. Shirmer, 122 Iowa, 699, 98 N. W. 504. Iowa, 585, 39 N. W. 905, we find: "But when plaintiffs (vendors) neglected to perform the undertaking on their part, the performance of which was precedent to defendant's right to avail himself of the remedy provided by the contract, its remedial provisions were abandoned, and he could avail himself of such remedies as would have been open to him if that condition had never been embodied in the contract." Hart-Parr Co. v. Duncan, 75 Okl. 59, 181 Pac. 288, 4 A. L. R. 1434, involved a sale of a traction engine with a warranty. The stipulation ended thus: that the use of said engine after the expiration "It is further mutually understood and agreed of the six days named in the above warranty shall be conclusive evidence of the acceptance of the same, and full satisfaction to the undersigned, who agrees thereafter to make no other claim on the Hart-Parr Company. " make the engine do the work as per the war- In a leading case, Douglass Axe Mfg. Co. v. Gardner, 10 Cush. (Mass.) 88, the wording of the contract was almost identical with the v. Vroman, 35 Mich. 310, at page 560 (24 In the case of Kimball & Austen Mfg. Co. contract involved in the present case. De-Am. Rep. 558), the opinion reads: fendant agreed "to deliver to the plaintiffs one hundred tons of iron as soon as conveni- turn of goods and did not at the same time pro"But if the contract itself provided for a reent within one month, warranted to be suit-vide that on such return the parties should be able for the purpose of manufacturing at the placed in statu quo, with no claims for further plaintiff's works, and at least as good as the redress, any doctrine that holds the warranty last sent them. If it was not, to be discharged holds that parties cannot make such returned at defendant's expense." In con- agreements as they see fit to make for lawful struing this writing, Mr. Justice Metcalf purposes." says: "When personal property is sold with warranty, the buyer is entitled, although he does not return it to the seller, nor give him notice of its defective quality, to maintain an action for breach of the warranty; or, if an action is brought against him by the seller for the price, he may prove the breach of warranty, either in diminution of damages, or in answer to the action, if the property be of no value. Field A reference to 24 R. C. L. p. 251, § 529, and note to Detwiler v. Downes, 50 L. R. A. (N. S.) 753 (119 Minn. 44, 137 N. W. 422), shows that the ruling in Feeney, etc., v. Stone is in line with the weight of authority. To the same effect is 2 Mechem on Sales, § 1801, where it is said: optional one, and the buyer at his election may "Usually, however, such a remedy will be an |