On Motion for Rehearing.
Plaintiff in error has filed a motion for rehearing, contending that we erred in overruling the assignment of error complaining of the action of the lower court in refusing to give the plaintiff’s requested charge No. I, directing a verdict for plaintiff.
It is earnestly insisted that the evidence shows that the goods were sold under a written warranty requiring certain notices to be given of defects in the machinery sold, and that the defendant must pay the amount due, with interest and attorney’s fees, because he did not give the notices required by "the warranty and thus give Fetzer & Co. the opportunity to correct the defects or furnish new drills, as was their right under the provisions of the warranty. In our opinion wé stated the rule with reference to breach of warranty to be that for such a breach the difference between the value of the article ’as it is and as it was warranted to be should be deducted from the price agreed to be paid. Appellant insists that said rule is not applicable to a case where the parties have provided another measure of damages, viz., the repair of defective parts or furnishing new machines. We think this contention is correct, and that a failure to comply with the conditions of the warranty should, as is specifically provided therein, be deemed conclusive evidence of satisfaction with the goods sold. J. I. Case Threshing Machine Co. v. Hall, 32 Tex. Civ. App. 217, 73 S. W. 835.
[10] The evidence shows that some of the drills were sold by defendant, and that, while the same were defective, yet neither he nor any of the purchasers gave notice of such defects to Fetzer & Co. such as is required by the terms of the warranty. The only notice given was in the fall of 1908, verbally, to an agent of Fetzer & Co., and defendant also complained to the attorneys who had the claim for collection. These drills were paid for by the purchasers, and defendant paid Fetzer & Co. for them. Defendant cannot be heard to claim any offset by reason of these drills having been defective.
The remainder of the drills were never set up, and therefore never tested by defendant. There is, consequently, no evidence that they are in fact defective. Defendant says he was unable to sell them. If so, he could not have complied with the portion of the warranty requiring notice of defects by the purchaser. The law does not *296require impossibilities, but it does require the compliance with conditions of a contract as far as it is within the power of a party. Defendant could have set up the other machines and given them a test, and notified Fetzer & Oo. of their defects and of the fact that he was unable to sell them. This he failed to do, and thereby has prevented Fetzer & Oo. from correcting such defects as might have been discovered, and from furnishing new drills where defects could not be corrected.
[11] The evidence fails to show any waiver by Fetzer & Oo. of the terms of the warranty. The fact that same were waived with reference to another person purchasing drills from them would not prove waiver in this instance. The warranty expressly provides that no agent has authority to change it, so the conversation in which defendant complained to Fetzer & Co.’s agent cannot be construed as a waiver.
Defendant does not plead fraud, and while the contract is in our opinion hard and especially unreasonable in giving only one day to try the drills, and requiring notice by both purchaser and dealer, yet it is our duty to enforce the contract as made.
[12] We have reached the conclusion that the trial court should have instructed a verdict for plaintiff as prayed for, and it appearing that the evidence has been fully developed, and that defendant cannot rely upon the warranty because he did not comply with its terms as far as he was able, judgment should be rendered by us for plaintiff. We therefore set aside the order remanding this case, and do now reverse the judgment of the district court, and, no foreclosure of the lien being prayed for in this court, we render judgment in favor of plaintiff against defendant for $1,212.58, with interest thereon from November 1, 1909, to the date of the judgment in the lower court, at the rate of 6 per cent, per annum, and also for 10 per cent, of the amount then due as attorney’s fees, and for all costs of suit, as prayed for in appellant’s brief and motion for rehearing.