— This action is on a promissory note, given by defendants to plaintiff, for one instalment of the purchase money, due on the purchase of a threshing machine. The sale was made by plaintiff ’ s local agent; the contract of sale included a written warranty as to the durability of the machine and of its capability for work. The contract contained, in addition, the following clause: “ All conditioned that if upon starting this machine the undersigned purchasers are unable to make it operate well, written notice stating wherein it failed to satisfy the warranty is to be given, in three days after starting the machine, by the purchasers to the dealer *182through whom purchased, and to The Heilman Machine Works of Evansville, Ind., and reasonable time allowed to get to it and remedy the defect, unless it is of such a nature that they can advise by letter. If the machine cqnnot be made to operate well, and the fault is in the machine, it is to be taken back and payment refunded, or the defective parts remedied and made the same as in other machines which do perform satisfactorily.”
Defendants pleaded the warranty and its failure, alleging a compliance with all conditions on their part, except giving written notice to either plaintiff or its agent. In avoidance of this obligation on their part, defendants pleaded a waiver of such notice.
The trial in the court below resulted in a verdict for defendants and plaintiff appealed ; urging now only the insufficiency of the case to establish a waiver.
The evidence tended to show that the machine did not fulfill the warranty, and that within three days, defendants verbally notified the agent from whom they purchased of such fact; that this agent notified one Hayden, a general agent of plaintiff, who had supervision of “the west half of Missouri and the state of Kansas,” and who was then somewhere in the state of Kansas. This agent came on in due time and brought with him one of the plaintiff ’ s experts. They succeeded in putting the machine in order as they claimed, but failed as defendants claimed. Defendants thereupon, on the same day, took the machine into Mt. Leonard and left it, notifying Hayden that they turned it over to him, but which Hayden refused to receive, disclaiming authority to receive it. Hayden afterwards took possession of the-machine under the power given in the mortgage and moved it to Blackburn, where, after giving notice as required by the mortgage, he sold it. As to the character of Hayden’s agency, it was further shown by his testimony that when he received the telegram from the local agent, he telegraphed to Springfield, Mo., for one of plaintiff’s expert machinists. That they met on the train and went to the machine together, the local *183agent accompanying them. The witness said: “I had authority to take this expert to Mt. Leonard, and it was my duty to take him there and go myself upon receiving the telegram, and try to remedy the trouble with the-machine and make it work satisfactorily according to the warranty. If the notice had been sent to the company at its office at Evansville, Indiana, I should have been notified of it and the matter put in my charge, as Mt. Leonard is in my territory. I charged my expenses to the company.”
Prom this evidence of the scope and character of his agency I have no doubt of Hayden’s authority to waive the stipulation as to notice and the kind of notice. That such stipulations may be waived by the party for whose benefit and in whose behalf they are inserted cannot be questioned. The foregoing covers the points assigned by appellant and is sufficient for a proper disposition of the case.
The difference and distinction between this case and that of Nichols, Shepard & Co. v. Larkin, 79 Mo. 264, is apparent upon comparison.
The judgment is affirmed.
All concur.