Aultman & Taylor Co. v. Hefner

Citations

• 67 Tex. 54
• 2 S.W. 861
• 1886 Tex. LEXIS 615

Syllabus

<p>1. Warranty Contraot.—When a manufacturer accepts an order for his machinery which on its face asks that it be forwarded subject to war ranties specified in the order, the warranties become as much a part of the contract as are notes and a mortgage on the machinery subsequently executed by the purchaser to secure the payment of the contract price.</p> <p>2. Warranty.—Though under such a contract the purchaser receives the machinery, and by thus making it his property loses the right to return it, if on trial it is found to be defective and not as warranted, and have his notes therefor canceled (as would be his right if he acted promptly in case of an executory contract for the purchase of machinery not seen, and not as represented by the seller), he is still protected by the warranty, and may resort to either of two remedies: (1) After accepting and running the machinery the purchaser may maintain an action for damages, in which he may recover not only a sum equal to the difference between the value of the defective machine and one of its kind not defective, but in which he may recover such amount of money as under the rules of law he would be entitled to as consequential damage. (2) If sued for the purchase money he may set up the defective quality of the thing warranted in diminution of the price agreed to be paid. The above doctrine is announced on a state of facts which negative the idea that the purchaser executed notes for the machinery and remained in possession of it after knowing its defective character, and in such manner as to waive his rights under the warranty.</p> <p>3. Cases Approved.—Brantly v. Thomas, 22 Texas, 270, and Blythe v. Speake, 23 Texas, 429, approved.</p> <p>4. Notice.—A manufacturer of machinery must be held to have full notice of its defects, and the want of diligence used by a purchaser thereof, who buys with warranty, in not testing it further after the execution of notes for the purchase money, given with an assurance that the sel