Concurring. — To the plaintiff’s suit for the sum of $7,233.25 for the purchase price of one Austin portable asphalt mixing plant after deducting $1,466.75, which defendant paid as freight, the defendant, after denying many allegations of the complaint, pleads in effect that the mixing plant ordered by defendant from plaintiff did not correspond with the one described in the order, and in the catalogue of plaintiff (pages 32 and 33) referred to in the order; that the plant was shipped from Chicago, Hlinois, and defendant had no opportunity to inspect the *560same; that it was received at Astoria, Oregon, about May 15, 1919, in a knockdown condition, so that it could not be then inspected; that as soon as it could be assembled about May 31st plaintiff ascertained that the mixing plant was not a new or complete plant, nor were the machinery and appliances belonging thereto new, but were old and rusted and had been used previously and substantially worn out, and many of the parts would not fit; that the plant was of no value whatever and could not be assembled without additional parts; that it was not provided with a revolving screen three-fourths and one-fourth mesh with a bin capacity of not less than four and one-half yards of two compartments for the holding of sand and gravel; that no such equipment was with the plant so delivered; that the plant did'not in any way correspond with the one described in the order and catalogue, but the plaintiff at the time the plant was delivered represented and guaranteed to the defendant that such plant was the plant contracted for and was in first-class condition; that it was agreed that defendant would assemble the plant; that plaintiff would make the same accordingly as required by the contract and place it in first-class condition and make it operate as contracted and would forthwith furnish the screens and bin and otherwise make it fully correspond to the contract and guaranty, all of which was believed and relied upon by defendant; that in order to assemble the plant it was necessary, by reason of the failure of plaintiff to furnish a complete plant, to purchase a large amount of additional appliances, mend broken parts and make parts fit which would not fit as delivered, all of which the defendant did under the advice and direction of plaintiff; that plaintiff furnished an alleged expert to *561operate the plant and teach defendant to do so, and in this manner it was attempted to operate the plant on the first of June of that year, in laying asphaltic top on roads; that the plant conld not be operated by reason of many inherent defects and faulty and too light construction, and the plant became and was a failure, but plaintiff insisted that it could and would make the plant work properly and fulfill the contract of warranty; that defendant expended $3,203.61 in purchasing additional parts and endeavoring to put the plant in workable condition which it would not have been required to pay had the plant been as contracted for; and that when properly operated the plant could not be made to lay 750 square yards of two-inch asphaltic top or its equal 1,000 square yards of one and one-half inch asphaltic top in ten hours, the best it would average being 433.7 square yards of one and one-half inch asphaltic top or its equal 325.275 square yards of two-inch asphaltic top, and for this reason it required a longer time to lay the asphalt and defendants are thereby damaged in the sum of $15,097.72. As a counterclaim to plaintiff’s complaint defendant demands such damages and the expenses of repairs and extra machinery together with the freight charge making a total of $19,750.08. The reply puts in issue the material portions of the answers. Upon the trial a verdict and judgment were rendered in favor of defendant for the sum of $10,145.47.
It appears from the record that the plaintiff sent two different mechanics to endeavor to put the plant in working order, who made efforts so to do until about August 15, 1919. The agents of plaintiff who had charge of the matter endeavor in their testimony *562to minimize the defects and make excuses for the failure of the plant to do the work. Their correspondence with their superior, the F. C. Austin Co., indicates that there was a failure of the mixing plant to do the work guaranteed in the contract. By accepting the order of defendant for the plant the plaintiff guaranteed
“the outfit to be well made, of good material and free from defects and should any defects in any part or parts develop in six months after arrival at destination you are to furnish the new part or parts free f. o. b. your factory and you are to guarantee the machine when properly operated capable of laying 750 to 1,200 square yards of 2" asphalt top in ten hours; you further agree to send a man at your expense to put the machine in operation and teach us to operate it and stay with the outfit not less than two weeks and we agree to notify you when we are ready to have the machine put in operation, said notice not to be longer than fifteen days after the machine arrives at destination, we to furnish all the necessary help to operate the outfit and all materials including fuel.”
This language of the contract from a form of plaintiff’s is a plain, absolute and complete general warranty on the part of plaintiff with the defendant that the machine sold by it would be as described in the part of the contract above quoted. Immediately following this general warranty in the contract there is superadded what may properly be termed a spe-. cial warranty as follows:
“If for any caiise, when testing the machine defects should develop, you are to have a reasonable length of time to remedy defects, but limited to ninety days and if you are not able to remedy the defect and make machine deliver the amount of material as herein provided, we are to return the machine to you *563and the amount we have paid for freight from your factory to Astoria, Oregon, is to be refunded and this order canceled. ’ ’
The plaintiff was engaged in manufacturing and selling Austin portable asphalt mixing plants. In construing the warranty, the position of the parties, the general conditions and surrounding conditions should be taken into consideration. The last part of the stipulation quoted, which we will term the special warranty, refers more particularly to the remedy of defects that might develop in testing the machine as to some parts thereof which could in the ordinary course of such business be replaced and remedied, and to the time for making such ordinary adjustments and to the testing of the mixer, and not to the general make of the machine, or the material therein or its durability. The contract does not contain a clause to the effect “that a certain specified use of the machine will constitute conclusive evidence that it satisfies the warranty, ” frequently inserted in such contracts. The warranty is positive and unequivocal that the outfit is to be “well made, of good material and free from defects.” Plaintiff guaranteed “the machine when properly operated capable of laying 750 to 1,200 square yards of 2" asphalt top in ten hours.” The contract contains no stipulation that the use of the machine for a certain time or failure to return the same shall be deemed an acceptance of the plant, or indicate that it was the intention of the contracting parties that in the event the machine failed to do the work guaranteed the return thereof to plaintiff and the repayment to defendant of the freight money should be the exclusive remedy of defendant. Taking the contract by its four corners it *564does not show that the parties intended to agree that a rescission or return of the machine should he the only remedy of defendant in case the mixing plant did not do the work guaranteed, or did not comply with the contract. It is conceded that notice of the failure of the mixing plant to meet the requirements was given to plaintiff and acted upon by it. The contract provided that payment therefor was to be made “within ten days after plant is in operation” and also, “should any defects in any part or parts develop in six months after arrival at destination you are to furnish the new part or parts free.” Ninety days’ time is the only limit for the plaintiff to remedy defects. All the particulars specified in the contract considered together do not express an intent to limit the warranty to the time of acceptance of the machine. The last quoted clause is not a limitation of defendant’s remedies.
The testimony tended strongly to show that upon the delivery and assembling of the mixer it was discovered not to be the machine described in the contract, differing from the one ordered in the following respects:
(a) The machine furnished was old and second hand, rusted and worn out.
(b) Oil-heating burners were not placed on the side but had been at one time, and were changed to rear corners of machine.
(c) Screw conveyor under pug mill not furnished; had to hoe mixture from a chute into trucks.
(d) Tailing chute would not fit and had never been in place.
(e) Chute from hot elevator to screen would not clear chain driving screen; new one fitted.
*565(f) Pug mill was driven by chains, constantly breaking as they appeared to be too light for the load they were transmitting.
(g) Air compressor omitted, but agitation pipes were not left in kettles.
(h) Kinney asphalt pumps were shipped, but did not/fit to machine, or pipe with three way valve, nor steam jacket piping. Defendant had to place extra man to dip asphalt.
(i) Bin capacity was only 1% yards instead of 4% or 5 yards, thereby limiting screen to such small size that it was practically worthless for intended purpose; also necessitated hand proportioning of mix.
(j) A direct weighing scale was furnished but bin was hung so that it was useless, necessitating dividing weight desired by 3.74, i. e., if you had 3.74 pounds in measuring box, it would only register 1 pound on the scale.
The plaintiff, knowing that defendant had entered into contracts with Clatsop County to construct certain highways therein, necessitating the laying of fully 36,685 square yards of one and one-half inch asphaltic top, and that none of this top had been laid and defendant had no machine with which to lay this material, unless it employed the one in question, urged defendant to try out this machine, promising that plaintiff would make it comply fully in all respects with the one ordered, and that plaintiff would furnish and install new for the worn parts and reconstruct the machine in all respects without cost to defendant. Thereupon, plaintiff undertook to carry out these suggestions, but after operating the machine for about forty days wholly failed, and gave it up.
*566The language of Mr. Justice Harris in Feeney & Bremer Co. v. Stone, 89 Or. 360 (171 Pac. 569, 174 Pac. 152), is applicable to the present case and places the State of Oregon in the class with the great weight of authority holding as in the Feeney & Bremer case. In that case it was “expressly guaranteed” that if the hoist “would not stand up to the work and accomplish the purpose of the defendant,” and that if the hoist would not work plaintiff would make the same do so, and if the machine would not work the plaintiff would charge the defendant nothing therefor. At page 366 of the opinion it is said:
“The plaintiff argues that the parties have by the agreement, alleged in the answer, limited the defendant’s remedy for a breach of the warranty to the right to decline to pay for the machine, and that, therefore, Stone is not entitled to recover damages for a breach of the warranty. If by the stipulation ‘the plaintiff would charge the defendant nothing therefor’ is meant that the defendant could refuse to accept the hoist, then the stipulation added nothing to the rights of the defendant since the law gave him the right to rescind the contract and return the machine within a reasonable time after delivery, for it must be remembered that the parties contracted for a machine which was not yet in existence when they made the agreement: Steiger v. Fronhofer, 43 Or. 178, 183 (72 Pac. 693); Lenz v. Blake, 44 Or. 569 (76 Pac. 356). If, on the other hand, the parties intended to agree that the defendant could keep the hoist without paying for it if it did not work, it constituted an additional rather than an exclusive remedy. Glenerally speaking, the parties to a contract for the sale of personal property have a right to agree that a defined remedy shall be exclusive; but in the absence of language evidencing an intention to make a given remedy, like the one in question here, exclusive of all others, it is treated as cumulative and permissive *567rather than exclusive and mandatory; and hence the buyer is usually permitted to avail himself of the special remedy; or, if he chooses, he may accept the property and recover damages for a breach of the warranty. There is nothing to indicate that the parties intended that the right not to pay should be the exclusive remedy.”
Therefore it has become the settled law in this state that in the absence of language evidencing an intention to make a given remedy exclusive of all others it is treated as cumulative and permissive: Feeney etc. v. Stone, supra.
In a leading case, Douglass Axe Mfg. Co. v. Gardner, 10 Cush. (Mass.) 88, the wording of the contract was almost identical with the contract involved in the present case. Defendant agreed
“to deliver to the plaintiffs one hundred tons of iron as soon as convenient within one month, warranted to be suitable for the purpose of manufacturing- at the plaintiff’s works, and at least as good as the last sent them * * . If it was not, to be returned at defendant’s expense.”
In construing this writing Mr. Justice Metcalf says:
“When personal property is sold with warranty, the buyer is entitled, although he does not return it to the seller, nor give him notice of its defective quality, to maintain an action for breach of the warranty; or, if an action is brought against him by the seller for the price, he may prove the breach of warranty, either in diminution of damages, or in answer to the action, if the property be of no value: Fielder v. Starkin, 1 H. Bl. 17; Poulton v. Lattimore, 9 Barn. & C. 359; Pateshall v. Tranter, 3 Adolph. & Ellis, 103; 2 Smith’s Lead. Cas. 15, 17. * * When a seller, in addition to a warranty of property, makes a promise to take it back if it does not conform to the *568warranty, we cannot hold that snch snperadded promise rescinds and vacates the contract of warranty. We are of opinion that in such case, the buyer has, if not a double remedy, at least a choice of remedies, and may either return the property within a reasonable time, or keep it and maintain an action for breach of the warranty.”
See Williston on Sales, § 607, and Masillon Engine Co. v. Shirmer, 122 Iowa, 699 (98 N. W. 504).
In the case of Wander v. Robertson, 75 Iowa, 585 (39 N. W. 905), we find:
“But when plaintiffs [vendors] neglected to, perform the undertaking on their part, the performance of which was precedent to defendant’s right to avail himself of the remedy provided by the contract, its remedial provisions were abandoned, and he could avail himself of such remedies as would have been open to him, if that condition had never been embodied in the contract.”
Hart-Parr Co. v. Duncan, 75 Okl. 59 (181 Pac. 288, 4 A. L. R. 1434), involved a sale of a traction engine with a warranty. The stipulation ended thus:
“It is further mutually understood and agreed that the use of said engine after the expiration of the six days named in the above warranty shall be conclusive evidence of the acceptance of the ' same, and full satisfaction to the undersigned, who agrees thereafter to make no other claim on the Hart-Parr Company. * * ”
On delivery several experts were unable to make the engine do the work as per the warranty. The court held that under these circumstances, there was no rule of law, at least, none recognized by that court, that would deny the vendee the provisions of the warranty and force him to take a worthless engine and pay $2,785 for it.
*569In the case of Kimball & Austen Mfg. Co. v. Vroman, 35 Mich. 310 (24 Am. Rep. 558), at page 560, the opinion reads:
“But if the contract itself provided for a return of goods and did not at the same time provide that on such return the parties should be placed in statu quo, with no claims for further redress, any doctrine that holds the warranty discharged holds that parties cannot make such agreements as they see fit to make for lawful purposes.”
A reference to 24 R. C. L., page 251, Section 529, and note to Detwiler v. Downes, 50 L. R. A. (N. S.) 753 (119 Minn. 44, 137 N. W. 422), shows that the ruling in Feeney etc. v. Stone is in line with the weight of authority. To the same effect is 2 Mechem on Sales, Section 1801, where it is said:
“Usually, however, such a remedy will be an optional one, and the buyer at his election may either return the goods or keep them and have such remedy as the law provides.”
An express warranty such as contained in the contract in question survives acceptance, and by the great weight of authority gives the buyer a remedy notwithstanding the defects were visible or open to discovery at the time they were received. The buyer may reject them, but he is not compelled to do so. By accepting the goods the buyer may lose his right subsequently to reject them, but he does not thereby necessarily lose his right to rely upon the warranty: 2 Mechem on Sales, § 1395.
Minnesota Thresher Mfg. Co. v. Hanson, 3 N. D. 81 (54 N. W. 311), holds thus: Retention and use of property without notice of defects, under general warranty, by preponderance of later and better authorities “affects only right to rescind. The buyer *570may still rely on the breach of warranty to defeat recovery in whole or in part.”
‘ ‘ The right to r rescind a contract of sale never operates to annul a warranty of the thing sold, unless there is a provision that the rescission is the only remedy, * * . The two' remedies can coexist, and the purchaser has her option between them.” Shupe & Co. v. Collender, 56 Conn. 489 (15 Atl. 405, 1 L. R. A. 339).
The warranty of the manufacturer with respect to the engine merely permits the buyer to return it. It does not provide that a failure to return shall constitute a waiver of the warranty: Hauss v. Surran, 168 Ky. 686 (182 S. W. 927, L. R. A. 1916D, 997). See, also, note to Crouch v. Leake, 50 L. R. A. (N. S.) 774.
A contract of sale may fix conditions precedent to any rights under the warranty if they are reasonable, and a failure by the buyer to comply with such conditions is fatal to his remedy for breach of the warranty, whether he institutes an action himself or sets up the breach in defense to an action for the purchase price: W. F. Main Co. v. Griffin-Bynum & Co., 141 N. C. 43 (53 S. E. 727); note, 50 L. R. A. (N. S.) 753. But where the warranty of a machine is absolute and unconditional, the purchaser’s right to rely upon it is not affected by an agreement to notify the seller so the latter may have an opportunity to remedy the defect; nor does it depend upon any offer to return the machine for breach of the warranty. The purchaser has a right of action for his damages, or when sued upon notes given for the purchase price he may counterclaim the amount of his damages: Gaar, S. & Co. v. Patterson, 65 Minn. 449 (68 N. W. 69, 50 L. R. A. (N. S.) 754, note).
*571Usually these contracts contain: First, a general warranty that the machine is made of good material, is durable, and will do the work it is intended for as well as any other machine. Then there is what may properly be termed a special warranty following this general warranty, that if, upon starting, the machine fails to work well, the purchaser shall give notice, and the seller will make it do good work, and if he does not the purchaser shall return the machine or defective parts, and another will be substituted by the seller or he will return the purchase money paid or notes representing the purchase price. There is also frequently a clause following these provisions, to the effect that a certain specified use of the machine will constitute conclusive evidence that it satisfies the warranty. The rule is well settled that if a contract for the sale of a machine contains a provision authorizing the purchaser to return it for breach of warranty, that it is optional witji the purchaser to pursue this remedy. The remedy is construed to be cumulative. The purchaser may have recourse to it, or he may retain the machine and depend upon his ordinary remedies for breach of warranty unaffected by this provision: 50 L. R. A. (N. S.) 755, 769, notes.
A provision in a contract for the sale of a machine, that the purchaser may return same for a breach of warranty, does not preclude the purchaser from keeping the machine and suing upon the warranty: McGill v. Hall (Tex. Civ. App.), 96 S. W. 132, 50 L. R. A. (N. S.) 769.
In Tunell v. D. M. Osborne & Co., 31 Minn. 343 (17 N. W. 944), a provision that
“all our machines are warranted to be well built, of good material, and capable of cutting, if properly *572managed, from 10 to 15 acres per day. If, on starting a machine, it should in any way prove defective, and not work well, the purchaser shall give prompt notice to the agent of whom he purchased it, and allow time for a person to be sent to put it in order. If it cannot then be made to do good work, the defective part will be replaced or the machine taken back and the payment of money or notes returned. Keeping the machine during harvest, whether kept in use or not, without giving notice as above, shall be deemed conclusive evidence that the machine fills the warranty, ’ ’—
has been held not to impose upon the purchaser the duty to return the machine in order to be entitled to recover damages for a breach of warranty, but it is sufficient for this purpose if he gives the notice specified. It is said that
“the warranty was an absolute obligation of the vendors, respecting the quality and capacity of the machine. The sale was perfected, and the title of the property transferred, although the vendor promised, and assumed the obligation in favor of the vendee, to rescind the sale in the event specified. The contract did not obligate the vendee to return the property nor to rescind the sale. It does not provide that the sale should be rescinded upon the contingency specified; nor does it express any intention of the parties that the remedy to which the vendee might become entitled for a breach of the express warranty should be confined to rescinding the sale. The vendee might insist upon the performance of the promise of the vendor to replace the defective part or to take back the property, or at his election, he might waive it, and recover damages for the breach of the warranty. ’ ’
To the same effect are D. M. Osborne & Co. v. Marks, 33 Minn. 56 (22 N. W. 1), and D. M. Osborne & Co. v. McQueen, 67 Wis. 392 (29 N. W. 636, 50 *573L. R. A. (N. S.) 771, note). It will be noticed that in tbe D. M. Osborne & Co. cases tbe language of tbe warranty is much stronger in favor of the seller than in the case at bar.
A provision in a contract for the sale of a horse, that the sellers agree to replace him with another horse on delivery at their stables, without cost to them, of the horse originally sold, if in as sound and good condition as when purchased, does not limit the purchaser to the remedy therein provided, but he may waive same, and recover damages for the breach of the warranty: Eyers v. Haddem, 80 Fed. 648. See Kemp v. Freeman, 42 Ill. App. 500, and Cook v. Lantz, 116 Ill. App. 472.
In Main v. Dearing, 73 Ark. 470 (84 S. W. 640),-a provision in a contract for the sale of jewelry by a manufacturer to a retailer, for the return of any article failing to wear satisfactorily, together with a provision that the purchaser waives all right to claim failure of consideration, or that the goods are not like the sample, or not according to the order, unless he has exhausted the terms of the warranty, is held to have no application where the goods are shipped to the purchaser without inspection by him, and upon arrival and inspection they are found to be unmerchantable. To the same effect as to a similar contract is Main v. El Dorado Dry Goods Co., 83 Ark. 15 (102 S. W. 681, 50 L. R. A. (N. S.) 786, note).
Plaintiff’s complaint shows that the mixer was shipped to defendant with bin one and one-half yards instead of four and one-half or five yards and with chain drive instead of shaft and with the burner changed, but it claims the defendant accepted and used the plant.
*574Quoting from and applying the opinion in Mine Supply Co. v. Columbia Mining Co., 48 Or. 391 (86 Pac. 798), at page 395:
“If, as the defendant alleges and the testimony tended to show, the mill furnished was not the ‘latest improved,’ but an old-style mill, there was a breach of the contract, for which the plaintiff is liable in damages: Steiger v. Fronhofer, 43 Or. 178 (72 Pac. 693); Lenz v. Blake, 44 Or. 569 (76 Pac. 356).
“The fact that it made an effort to use and operate the mill was not a waiver of its right to damages for such breach: Norton v. Dreyfuss, 106 N. Y. 90 (12 N. E. 428); Northwest Cordage Co. v. Rice, 5 N. D. 432 (67 N. W. 298, 57 Am. St. Rep. 563).”
The latter case shows that if plaintiff did riot comply with its part of the contract defendant is not bound by the limitation in question, if the latter •clause of the order is considered as such limitation. We quote further from the language of Mr. Justice E. S. Bean in that case, page 396, thus:
“There is also a provision in the contract that the plaintiff should not be responsible for repairs or alterations unless made with its written consent,,, nor liable for damages on account of delays caused by such repairs or alterations. This stipulation can only apply in case plaintiff complied with its contract. If it did not furnish a mill of the kind and description specified in the contract, and defendant was damaged by reason thereof, it cannot shield itself from liability behind a stipulation iri a contract with which it did not comply.”
In support of plaintiff’s contention much reliance is placed upon the case of Fay & Eagan Co. v. Crowell, 182 N. C. 532 (109 S. E. 562), and the case of Consolidated Wagon & Machine. Co. v. Barben, 46 Utah, 377 (150 Pac. 949). In the first case, the con*575tract of warranty of mill machinery sold contained the following:
“That a retention of the property forwarded, after 30 days from its arrival at destination, shall constitute a trial and acceptance, be a conclusive admission of the truth of all representations made by or for the consignor, and a fulfillment of all its contracts of warranty, express or implied.”
The second was a case where a written contract of sale contained a warranty providing that if after a trial of five days the machinery should fail to fulfill the warranty written notice should be given to the seller and also the agent from whom the machinery was received, and that failure to make such trial or give such notice should be conclusive evidence of due fulfillment of warranty. The warranties in the two cases were entirely different from the one in the case at bar.
The remedy accorded to defendant by the eontract to return the machine was permissive or cumulative, and if defendant did not avail itself of the benefit thereof and return the mixer this would not deprive it of a remedy to counterclaim damages for a breach of the warranty. The effort of the defendant during the summer of 1919, through two mechanics whom it sent (and it discussed obtaining an expert from San Francisco) to put the mixer in shape, was a strong request for defendant to retain the machine for at least ninety days after it was attempted to be. put in operation. Plaintiff was entitled to that time to remedy the defects. It commenced this action before the expiration of the ninety days and before it had made the mixer do the agreed work.
The testimony indicates, and the jury must have found, that the mechanism of the plant was lacking *576in ability properly to mix tbe material for the pavement, necessitating the labor of a man with a shovel to stir np and mix the ingredients. It also strikingly failed to do the required amount of work, was weak in parts, and inefficient. The mixer was worthless, a mere “joke.” As testified by Mr. Olson, agent and expert of plaintiff (Transí, p. 109), the make of the plant was “not a g’ood job.” An attempt was made by the parties to settle, and there were differences and a dispute in regard to the acceptance of the plant. How could defendant be required to return a machine upon which it had expended at plaintiff’s request over $3,000 in parts and labor in order to make it conform to contract? In order to rescind and cancel the order the parties should, as far as possible, be placed in the same situation they were in when the contract was made. The defendant, when it ordered the mixing plant, had road contracts to complete and desired the machine for that purpose. It relied upon the warranty, which is a distinct, absolute unconditional warranty that the mixer would be the kind and do the work specified therein. Without such a warranty plaintiff could not reasonably have expected to sell the machine under the circumstances portrayed in this case. The warranty is not limited to ten days or until acceptance of the apparatus, but is general and survives the acceptance.
It appears from the record that the machine was built over by a salesman of plaintiff during the winter-time and changed in essential particulars from the one described in the contract. Plaintiff should not be permitted to foist on to the defendant a worthless machine.
It is admitted by the parties that the order as changed (Exhibits “B,” “C,” and “D”) was ac*577cep ted by plaintiff when the machine was shipped April 26, 1919. A few days after the machine arrived, in response to a telegram sent at the request of defendant by Howard-Cooper Co., the general sales agent of plaintiff in Oregon, Mr. A. N. Skill-man a representative of plaintiff came to assist in setting up and making the plant work. Later the plaintiff sent a Mr. Olson to Astoria for the same purpose.
Mr. A. N. Skillman, a witness for plaintiff, testified among other things that he directed Mr. Tillman to put in a screen; that Mr. Tillman contended he wanted a larger bin with storage capacity of four and one-half or five yards, which necessitated a large expense, “I told him it could not be done, I had no authority to do anything of that kind.” He was there three or four weeks, and states that they started the plant on the second or third of June; that it ran fairly. He credits the failure of capacity of the machine to the dampness in that locality, and the kind of material used. On cross-examination he stated that he sent the following telegram
“to F. C. Austin Company, Postal Railway Exchange Bid., Chicago, 111.: ‘I understand hav.e authority to put plant into working condition. It puts Mr. Tillman in bad under present conditions. Ship 100 links for 103 drive chains. A. N. Skillman.’ ”
This was about two or three weeks after he arrived.
Mr. Eugene Olson as a witness for plaintiff testified in part that he arrived at Astoria, Oregon, as a representative of plaintiff July 11, 1919, to do what he could to “get the plant in operating condition,” and did “everything possible that could be done”; that Tillman complained of many things that had *578“gone wrong with the plant,” and that “the plant does not deliver the minimum amount of material called for in the contract.” Olson asked Tillman whether he wanted to accept the plant or reject it, and after that authorized changes to be made in the plant. On July 18th, plaintiff wired Olson from Chicago to take possession of the plant and “discontinue laying asphaltum immediately. Put a watchman on plant.” This was done. The plant was not started again until about July 29th. Olson stated that Tillman wanted many changes in the plant.
It appears the machine would run for a little while and then there would be some trouble. Mr. Olson pointed out many things wherein the plant differed from the specifications of the contract. Olson stated on cross-examination, “I remained here until August 15th,” and that the plant was- operating all right up to the time it was shut down July 18th. Tillman was allowed to operate the plant again July 29th, until about September 17th. The watchman was still there at the plant.
This action was commenced August 9, 1919. The testimony is voluminous. It tended to show that at the time this action was commenced the mixer had not been put in condition to do the work according to the contract; that it was not as described in the contract and never was put in successful operation; that it could not be made when properly operated to do the work according to the warranty; that it was continually breaking down through inherent weakness; that it was not “well made of good material or free from defects,” but was an old made over machine and practically worthless; that the plaintiff promised to remedy the defects and make the machine work properly, but failed to do so; and that on *579account of the failure of plaintiff to comply with its part of the contract defendant was damaged to the full amount of the verdict; and the motion of plaintiff for a nonsuit as to defendant’s counterclaim was properly denied.
If the clause of the contract should not be construed according to the view of the writer but should be held to be mandatory and not permissive, in the requirement for defendant to return the machine, then there are two reasons why defendant was not required to return the machine before the commencement of this action, viz.: (1) Plaintiff promised and undertook to remedy the defects and was entitled to ninety days to do so, which time had not expired when the action was begun; plaintiff had not put the machine in condition to do the required work, but had continually been trying to do so, and encouraged defendant to believe that it would. (2) Defendant, at the special instance and request of plaintiff, had expended over $3,000 for new parts and attachments for the machine, and labor in an effort directed by plaintiff to remedy the defects in the mixer; and should not be required to deliver the machine to plaintiff until it is compensated therefor. This had not been paid to defendant. It is admitted that plaintiff authorized defendant to make expenditures for such purpose.
In the case of a sale of machinery with a warranty where the buyer may return the chattel for failure to comply with the warranty “so long as the seller continues to attempt to remedy the defect in the chattel, such as machinery, and holds out encouragement to the buyer that it will be made as warranted, he is justified in postponing its return.” In any event the defendant was entitled to a reason*580able time to return the machine after the plaintiff ceased to attempt to remedy the defects: 24 R. C. L., p. 290, §571; First Nat. Bank of Webster City v. Dutcher, 128 Iowa, 413 (104 N. W. 497, 1 L. R. A. (N. S.) 142); Warder etc. Co. v. Myers, 70 Neb. 15 (96 N. W. 992); McCormick Harvesting Co. v. McNicholas, 66 Minn. 384 (69 N. W. 36); Jacobs v. Crumbaker, 67 Ill. App. 391.
The rule is stated in 35 Cyc. 440, thus:
“The return of the goods for breach of warranty will be regarded as waived where the failure to return or the delay is caused by conduct of the seller in requesting the buyer to retain the goods for further trial, or by a promise by the seller to remedy the defects, or by an attempt of the seller’s agent to remedy the defects after the expiration of the time limited without objection on the ground that notice had not been given.”
Expressed differently and in the language of the opinion in Mine Supply Co. v. Columbia Mining Co., 48 Or. 391 (86 Pac. 789), “this stipulation can only apply in case plaintiff complied with its contract.” If plaintiff did not furnish a mixer of the kind and description specified in the contract and the defendant was damaged by reason thereof “it cannot shield itself from liability behind a stipulation in a contract with which it did not comply.”
The syllabus to the case of Sanford v. Brown Bros., 208 N. Y. 90 (101 N. E. 797, 50 L. R. A. (N. S.) 778), reads thus:
“It is a well-established canon of interpretation that in seeking for the intent of parties the fact that the construction contended for would, make the contract unreasonable and place one of the parties at the mercy of the other may be properly taken into consideration.
*581“Defendants agreed to and ■ did furnish nursery stock to plaintiff under a contract which contained this clause: ‘Any stock which does not prove to be true to name as labeled- is to be replaced free, or purchase price refunded; and all stock to be delivered in a thrifty and healthy condition.’ At as early a date as a discovery could be made, it was found that a large number of the trees furnished were not of the variety ordered by the plaintiff, who brought this action to recover damages alleged to have been sustained by him for breach of contract. Defendant moved for the dismissal of the complaint on the ground that plaintiff had not demanded or been refused the measure of damages provided for by the terms of the contract as above quoted. Held, that the defendant failed either to limit or avoid liability by the terms employed in the agreement of purchase and sale. The language used by it is susceptible of construction as an inducement to a sale of its goods or as an additional promise upon its part, but cannot be construed as a limitation of liability for a breach of contract.”
The claim of plaintiff that the defendant under the contract is not entitled to recover upon its counterclaim was presented in timely objections to the testimony, a motion for a nonsuit as to defendant’s counterclaim, and requested instructions to the jury. These questions all revolve around the construction of the contract.
The questions of fact in the case were fairly submitted to the jury by the charge of the court. After fully stating the issues the court’s charge reads in part thus:
“The first question for you to consider in this case is whether or not the asphalt mixing plant that was delivered to the defendant was the plant contracted for; that is, the plant as described in the contract of purchase and sale, which has been intro*582duced in evidence and read to yon, being Plaintiff’s Exhibits ‘B’ and ‘C’ at pages 32 and 33 of plaintiff’s catalogue, Plaintiff’s Exhibit ‘I).’ # * If yon shall find from the preponderance of the evidence that plant delivered was in all material matters the plant contracted for, this ends the case and yon will then bring in yonr verdict for the plaintiff for the agreed contract price of $8,700 less $1,466.75, which it is agreed defendant had paid plaintiff prior to this action.
“On the other hand, if you are not satisfied by a preponderance, of the evidence that the plant delivered by the plaintiff to the defendant or as repaired and defective parts, if any, remedied under the direction of the plaintiff, was in all material respects the plant contracted for, you will then turn yonr attention to the claim of the defendant for damages as ■ alleged in this answer. * * If such plant as accepted by the defendant was of less value than the contract price of the plant contracted for, the defendant would be entitled to recoup in damages the difference between such contract price and the fair reasonable value of the plant as accepted; for instance, by way of illustrating, without expressing any opinion on the evidence — if you should find from the evidence that the plant accepted by the defendant was entirely worthless, it would be your duty to award to the defendant and against the plaintiff the sum of $1,466.75 * * . Of course, whatever sum, if any, yon shall determine was the value of the plant as delivered and as repaired, and defects remedied, you will first allow the plaintiff, and if less than $1,466.75, deduct said sum from $1,466.75 and award the remainder to the defendant, but if in excess of $1,466.-75, then deduct $1,466.75 from such value and award the remainder to the plaintiff.
“In addition to this item, if the plant was not as contracted for, plaintiff is liable to the defendant on his warranty. Therefore, if you should find from a preponderance of the evidence that at or before plaintiff accepted the contract, Plaintiff’s Exhibits
*583‘B’ and ‘0’ and pages 32 and 33 of plaintiff’s catalogue, which is Plaintiff’s Exhibit ‘D,’ which acceptance is agreed to have been April 26, 1919, defendant had entered into a contract or contracts with Clatsop County whereby defendant was obligated to lay on the road or roads of said county substantially 36,685 square yards of one and a half inch asphaltic top which defendant intended to employ said plant in laying, and that plaintiff had notice or knowledge of it, or had notice or knowledge of facts from which an ordinarily reasonable man would have known of such purpose and contract, in that event, the defendant is entitled to recover upon the warranty in this contract, Plaintiff’s Exhibits ‘B’ and ‘C,’ and pages 32 and 33, plaintiff’s catalogue being Plaintiff’s Exhibit ‘D, ’ the damage suffered, if any, by reason of the fact that the plant was not as warranted by plaintiff, * * ”
The court instructed the jury as to the measure of damages, and then in regard to the expenditures on the plant by defendant, in substance that, if they found the machine was in the condition claimed by defendant and defendant expended money thereon at the request of plaintiff and on plaintiff’s promise to pay the cost thereof the defendant,would be entitled to recover such expenditures. The court further charged the jury:
“I instruct you that the proper construction of these words is that the plant must be in operation accordingly as provided for in the contract, that is, it must be in such condition when properly operated, to lay at least 750 square yards of two inch asphaltic top in ten hours and to do this substantially every operating day. Therefore, the sum of $8,700, the agreed price, would not become due until the plant was as represented and contracted for in all material respects, and then only ten days after same had been properly operated. Of course, defendant *584would be required to begin operating within a reasonable time, and this defendant did in this case,”
The charge to the jury is not objectionable.
Plaintiff assigns that the trial court erred in not allowing plaintiff in rebuttal to introduce testimony in regard to the dampness of material used while operating the plant, for the purpose of showing that the mixer was substantially as warranted. The court ruled “that it was a part of the direct case” and “one of the matters that was testified to, to considerable extent on the direct,” and not proper rebuttal. The matter had been testified to at great length in plaintiff’s case in chief. The attempt was in effect one to have the last word. There was no error in such ruling.
The plaintiff pleaded “that the plaintiff has performed all things by it to be performed and kept according to the terms of said order and contract of purchase * * This was under authority of Section 88, Or. L., which reads:
“In pleading the performance of conditions precedent in a contract, it shall not be necessary to state the facts showing such performance, but it may be stated, generally that the party duly performed all the conditions on his part; and if such allegation be controverted, the party pleading shall be bound to establish on the trial the facts showing such performance. ’ ’
This averment was controverted by defendant. Therefore the burden of showing a compliance with the contract devolved upon the plaintiff: Richardson v. Investment Co., 66 Or. 353 (133 Pac. 773).
According to the order which constituted the contract between the parties, the defendant is entitled *585to maintain its counterclaim. The judgment of the trial court should be affirmed. It is so ordered.
Appiemed.