I am unable to concur in a reversal. The court specifically charged that there was an implied warranty. Beginning in folio 714, the court said:
"That warranty [implied warranty] did not appear written in the contract. It was not there in so many words, but it was just as effective as if it had been written there, and that is the law. The law implies that there shall be read into every such contract that the article sold is reasonably adapted to the purpose for which it is sold, and that was in that contract just as much as if it was written there in black and white, and, being in the contract, the defendant, if it chose to do so, had a right to provide that before any claim would be made for a violation of that contract that the law implied, they [it] would have a right to remedy the difficulty, and apparently that was the provision that was in this contract, that it would have the opportunity to remedy, if it could, before the sale would be forfeited and the money recovered by the plaintiff."
Before the quoted portion of the charge was given, the court had very fully stated the claims of both plaintiff and defendant as to how the machine operated, and, after giving the above quoted part of the charge, the court stated that the stipulated notice of defect could be waived, and left to the jury whether it was waived by defendant's undertaking to remedy the defect in the machine, if any, stating:
"If there were defects in the machine and those defects were known to the men who were there, then the notice would be waived, because, while the company would have notice of the defects through its men, but if there were no defects, why, of course, it had no such notice and would be entitled to know the position claimed by the plaintiff and what he claimed were the defects."
This was evidently directed to the fact that the telegram did not specify any defect. In my opinion, the charge fully protected the rights of plaintiff, and the order should be affirmed. *Page 316