I do not agree that the questions in the stipulation must be resolved in favor of the defendant, appellant. On the contrary, my view of that is as follows: The appellant contends that by it respondent was barred from making such a motion as the one under consideration. This is untenable. The stipulation merely limited the issues of fact for a trial. It did not prevent a motion for summary judgment as a matter of law.
Next it is claimed that the statute in the event of latent defects prevents extinguishment of a warranty by acceptance. "So it does, unless otherwise agreed. In our case, as appears from the back of the contract (referred to also on the face), it was otherwise agreed.
It is asserted that the answer sets up a good claim for damages and so could not be stricken out. This is not so. The counterclaim is at once destroyed by the agreement set up in the reply.
As to the majority view with respect to the construction of the fifteen-day clause, the statement of it seems to defeat itself. If, as asserted by defendant, the defective qualities alleged could not be discovered except in the course of manufacture, the certainty that they could be discovered only at the time of such manufacture must have been known to both parties to the contract when made. Moreover, according to the defendant, all the spools were defective and the defect, therefore, would have been discovered upon testing any one spool. As the papers stand, the goods were never rejected, and defendant does not show that the defects were called to plaintiff’s attention within a reasonable time.
. If this be so, the parties accepted the clause in question with their eyes open and the defendant has no excuse for not making the test, no matter how difficult, within fifteen days.
The judgment should be affirmed.
Judgment reversed.