(after stating the facts). (1) The contract provides that “all claims for shortage, damaged or defective parts must be made by purchaser within ten days from time of receiving silo.” The court did not err in instructing the jury that this provision of the contract was not binding upon the appellee because under the undisputed evidence there was no shortage, no damage, or defective parts which.the appellee discovered, or by the exercise of any ordinary care could have discovered within ten days after the silo was received.
Appellee testified concerning this that he was inexperienced in the building of silos and was no judge of the material of which they were constructed, and from the looks of the material he could not tell whether it was defective or not. Furthermore, that the agent, through whom the appellee purchased the silo saw the material before it was put up and instructed appellee to go ahead and put it up; and that he relied upon the agent’s judgment.
The testimony on behalf of the appellant was to the effect that there was no shortage, and that the material of which the silo was constructed was. entirely free from damage or defective parts.- There was no testimony to show that the defects were obvious to one of appellee’s experience.
The court was fully justified in not allowing any issue to go to the jury as to whether or not the appellee was estopped from claiming damages by a failure to comply with the ten-day clause of the contract.
(2) The provisions in the contract, “that the silo above ordered is guaranteed according to the current catalogue,” and the provisions in the current catalogue, “we guarantee our long leaf yellow pine silos when properly roofed and painted to last and give good satisfaction for a period of twenty years,” constitute an express warranty that the silo would preserve the ensilage and was fit for the purposes for which it was manufactured and sold.
(3) Appellee’s prayer No. 3 would have been a correct instruction if based on the provisions of expressed warranty, and if the case had been presented to the jury on that theory as it should have been. Even if there had been no express warranty the appellant was liable upon an implied warranty and the court did not err in submitting that issue to the jury as it did in appellee’s prayer No. 4.
Appellant made no specific objection to this prayer and did not itself offer any prayer for instruction submitting the issue as to whether or not the damage of appellee arose from a defective construction caused by him and not from any shortage or defect in material of which the silo was constructed.
The testimony on behalf of the appellee tended to prove that the silo was constructed precisely in the manner directed by the appellant, Appellee, therefore, had the right to insist that the silo when so constructed would he useful for the purpose for which it was intended. There is no conflict between the expressed and implied warranty from appellee’s viewpoint of the evidence and he had a right to have the issue presented from his viewpoint. See Blackmore v. Fairbanks, Morse & Co., 44 N. W. 548.
(4) The appellant is not in an attitude to complain that its theory that the damages, if any, to appellee resulted from his own failure to construct the silo properly rather than from any defective material, was not made an issue before the jury for the reason that appellant presented no such request. Appellant made no complaint as to the amount of the damages.
The judgment is therefore, correct and is in all things affirmed.