Wildman Mfg. Co. v. Davenport Hosiery Mills. 4. SALES. Uniform Sales Act's requirement of notice by buyer of breach applies to delay in delivery. Uniform Sales Act, section 49, providing that, while acceptance of goods by the buyer shall not discharge seller from liability for breach of any promise or warranty in contract, seller shall not be liable if, after acceptance of goods, buyer fails to give notice to seller of the breach of any promise or warranty within a reasonable time after buyer knows or ought to know of such breach, applies to failure to deliver at time specified. (Post, pp. 559-560.) Cases cited and approved: Trimount Lumber Co. v. Murdough, 229 Mass., 254; Mason v. Valentine Souvenir Co., 180 App. Div., 823; Pennel v. N. J. Brass Corporation, 186 N. Y. Supp., 606; Shearer Co. v. Kakoulis, 144 N. Y. Supp., 1077. 5. SALES. When questions of giving notice by seller of breach and of reasonable time are for jury and when for court stated. While ordinarily the question whether notice of breach has been given by buyer, and, if so, whether within a reasonable time, as required by Uniform Sales Act, section 49 are for the jury they are for the court where the facts are undisputed. (Post, pp. 560563.) Cases cited and approved: Marmet Coal Co. v. People's Coal Co., 226 Fed., 646; M. & M. Co. v. Hood Rubber Co., 226 Mass., 181; Chess & Wymond Co. v. La Crosse Box Co., 173 Wis., 382; Trimount Lumber Co. v. Murdough, 229 Mass., 254; Maggioros v. Edson Bros., 164 N. Y. Supp., 377; Kaufmann v. Levy. 102 Misc. Rep., 689; Mason v. Valentine Souvenir Co.. 180 App. Div., 823; Mastin v. Boland, 178 App. Div., 421; Stone v. Beim, 176 N. Y. Supp., 25; Matthes v. Benn, 107 Misc. Rep., 633; Kleeb v. Long Bell Lumber Co., 27 Wash., 648; Altkrug v. Wm. Whitman Co., 185 App. Div., 744. Case cited and distinguished: Hesse v. Gude Bros.-Kieffer Co., 170 N. Y. Supp., 211. 6. SALES. Mere complaint not "notice" of breach. Uniform Sales Act, section 49, requiring "notice to the seller of the Wildman Mfg. Co. v. Davenport Hosiery Mills. breach of any promise or warranty" to be given by the buyer in a reasonable time, as a condition to liability of the seller, is not satisfied by a mere complaint, but there must be language or conduct advising the seller that the buyer is looking to him for damages. (Post, pp. 563-584.) Cases cited and approved: Trimount Lumber Co. v. Murdough, 229 Mass., 254; Rittenhouse-Winterson Auto Co. v. Kissner, 129 Mo. 102; Herbrand Co. v. Lackawanna Steel Co., 280. Fed., 11; Marmet Coal Co. v. People's Coal Co., 226 Fed., 646; Johnston v. C. N. O. & Tel. Ry. Co., 146 Tenn,, 135; Mastin v. Boland, 178 App. Div., 421; Kaufmann v. Levy, 102 Misc. Rep., 689; Silberstein v. Blum, 167 App. Div., 660; Mason v. Valentine Souvenir Co., 180 App. Div., 823; Chess & Wymond Co. v. La Crosse Box Co., 173 Wis., 382. Cases cited and distinguished: Chess & Wymond Co. v. La Crosse Box Co., 173 Wis., 382; Maggioros v. Edson Bros., 164 N. Y. Supp., 377; Matthes v. Benn, 107 Misc. Rep., 633; Pierce Foundation Corporation v. Eagle Pipe Supply Co., 180 N. Y. Supp., 88. Code cited and construed: Sec. 8449 (Gen. Code). 7. SALES. No notice within seven months of claim for damages for failure to deliver in stipulated time. Evidence on counterclaim by buyer against seller for damages for failure to deliver at times stipulated machines bought held to show mere complaint, but no notice of claim of damages within seven months after failure to commence deliveries in stipulated time and knowledge of breach. (Post, pp. 584-586.) 8. SALES. Running of time for notice of claim of damages for delays in delivery not postponed to last delivery. The reasonable time after buyer knows or ought to know of the breach of contract within which Uniform Sales Act, section 49, requires him to give notice of claim of damages is not determined by reference merely to the time elapsing after the last delivery. where there was delay in the first delivery, and information was then given that there would be delays in the subsequent deliveries. (Post, pp. 586-588.) Wildman Mfg. Co. v. Davenport Hosiery Mills. 9. SALES. Notice of claim of damages for delay in delivery held not in reasonable time. Notice of claim of damages for delay in delivery was not in the reasonable time required by Uniform Sales Act, section 49, where it was not given until seven months after delay in the first delivery and information that subsequent deliveries would be late. (Post, pp. 586-588.) Case cited and approved: Hesse v. Gude Bros.-Kieffer Co., 170 N. Y. Supp., 211. BACHMAN, J., dissenting. FROM HAMILTON. Appeal from the Chancery Court of Hamilton County.HON. W. B. GARVIN, Chancellor. CANTRELL, MEACHAM & MOON, for appellant. ALLISON, LYNCH & PHILLIPS, for appellee. MR. MALONE, Special Judge, delivered the opinion of the Court. The original bill in this case was filed by the Wildman Manufacturing Company a foreign corporation, to collect the sum of about $4,000, being the balance due on certain knitting machines sold to the Davenport Hosiery Mills. That company âled a cross-bill, claiming more than $60,000 damages because of the alleged failure of the Wildman Company to deliver the machines on time. A jury having been demanded by the cross-complainant, the following issues were framed and submitted by the chancellor: Wildman Mfg. Co. v. Davenport Hosiery Mills. "I. Was it a part of the original contract between the parties that the time for the delivery of the machines was subject to delays due to unavoidable causes or conditions over which the complainant had no control? "II. Subsequently to the making of the original contract, did the parties modify the contract so as to extend the time within which said machines should be delivered? "III. Did complainant deliver the machines within the time required by the original contract or within the time required by the modification of the contract, if there was a modification as to the time of delivery? "IV. If you answer the last question 'No,' then did the defendant in accepting and retaining the machines and by its conduct waive any claim for damages for the delay? "V. If you find that complainant did not deliver the machines within the time it should have delivered them, and that the defendant did not waive damage for the delay, then state what amount of recoverable damages, if any, the defendant sustained by the delay in delivery." Proof was introduced by the parties, and each side moved for a directed verdict. The chancellor directed the jury to answer the first four issues "No," and submitted the last issue to be answered under the evidence and the charge of the court. The jury, responding to this issue, fixed the damages at $13,224.37. On motion for a new trial, the chancellor filed a memorandum opinion, sustaining the eleventh ground of the motion, which was that: "The verdict of the jury was so excessive as to evince passion, prejudice, and caprice on the part of the jury." Whereupon the cross-complainant asked the chancellor to express his views as to the amount of damages, and the Wildman Mfg. Co. v. Davenport Hosiery Mills. chancellor, upon this invitation, estimated that the damages should have been fixed at about one-third of the amount found by the jury, or $5,875. He stated that, if cross-complainant would enter a remittitur reducing the damages to this amoun, a new trial would be refused; otherwise granted. This remittitur was accepted under protest, and cress-complainant, having admitted liability for the balance due on the machines, was given a decree for the difference between this amount ($4,046.98) with interest and the amount of the damages ($5,875) with interest-that is to say, the net sum of $1,671.94. From this decree both parties have appealed and assigned errors, the Wildman Company complaining of the chancellor's action in directing a verdict on the first four issues in favor of cross-complainant, and in refusing to direct a verdict for complainant, also of various rulings on evidence, as well as alleged errors in the charge of the court; the Davenport Hosiery Mills Company of his action in reducing the damages. Before discussing the chancellor's action in directing a verdict for cross-complainant, it is well to re all the rule of this court governing directed verdicts, viz. that the trial judge should take the most favorable view of the evidence supporting the rights asserted by the party against whom the motion is made, and discard all countervailing evidence. Walton v. Burchel, 121 Tenn., 715, 121 S. W., 391, 1.9 Am. St. Rep., 788; Railroad v. Williford, 115 Tenn., 108, 88 S. W., 178; Knoxville Traction Co. v. Brown, 115 Tenn., 323, 89 S. W., 319; Kinney v. Railroad, 116 Tenn., 450, 92 S. W., 1116; Norman v. Railroad, 19 Tenn. 401, 104 S. W., 1088; Railroad v. Morgan, 132 Tenn., 1, 175 S. |