Miller Lock Co. v. Diehl Manufacturing Co.

Citations

• 37 Pa. Super. 585
• 1908 Pa. Super. LEXIS 331

Syllabus

<p>Contract — Warranty—Breach of warranty — Machinery—Delay—Evidence.</p> <p>The seller of a machine specifically guaranteed “the rating, stability and performance of its apparatus, and will without charge, during a period of one year from the date of shipment, repair or at its option, furnish to the purchaser a new part in' exchange for any part or parts of machines of its manufacture that shall, under normal conditions of operation, and under proper supervision and attendance, develop any mechanical or electrical defect.” The warranty was part of the specifications. Among the things which the specifications required the machine to perform was: “Without shifting the position of the brushes, the generators will operate at all loads between no load and full load without sparking, and will withstand momentary overloads of thirty-five per cent without injurious sparking.” The evidence showed that the machine sparked continuously and injuriously at much less than full load from the time it was installed, that this was a serious defect, that the seller was notified and made frequent attempts to make the machine work, but did not succeed, and refused to do anything more. Held, that the seller was bound to furnish a machine which would operate properly as a whole, and that the warranty was not limited merely to keeping the machine in repair for one year, or furnishing new parts.</p> <p>When a party does not allege fraud and seek to recover upon that ground and there is no covenant in the contract for a return of the goods, it is not necessary in an action on an express covenant of warranty in a contract for the sale of machinery that the plaintiff should, before bringing suit, redeliver or tender the property to the defendant.</p> <p>The mere fact that the purchaser of a machine uses the machine for over a year before throwing it out, although it does not work in a manner covered by an express covenant of warranty, will not defeat a right to recover on the warranty.</p> <p