Wildman Mfg. Co. v. Davenport Hosiery Mills.

W., 1148; Mayor & City Council v. Reese, 138 Tenn., 471, 197 S. W., 492, L. R. A., 1918B, 349; Johnston v. Ry. Co., 146 Tenn., 135, 240 S. W., 429.

Or, as stated in the last-named authority:

"It has been established by repeated decisions of this court that, upon a motion for peremptory instructions, the entire evidence must be looked to, and that it must be given the construction most favorable to the adversary party, and all reasonable inferences allowed in his favor, and that, if there is then seen to be a dispute as to any material determinative evidence, or any doubt as to the conclusion to be drawn from the whole evidence, the motion should be denied."

It is also the rule of this court (contrary to the federal practice) that, where both parties move for a directed verdict, this does not submit the whole case to the court, but that each motion should stand "as if made and remaining alone, and should be disposed of on its own merits;" that, upon appeal, each party "may attack the action of the trial judge, in overruling his motion and in sustaining that of his adversary, and may put forward his contention of the facts and assail that of his adversary; and the appellate court will for itself ascertain the facts, and will determine whether the trial judge should have sustained the one motion or the other, or should have submitted the case to the jury." Hardware Co. v. Hodges, 126 Tenn., 370, 378, 149 S. W., 1056, 1058.

Pursuant to the practice above indicated, counsel have, in their briefs and in the argument, fully discussed the evidence relating to each of the issues above set out, and also that relating to the question of damages.

Wildman Mfg. Co. v. Davenport Hosiery Mills.

After carefully studying this record and the excellent briefs of counsel, we are of opinion that one of the issues submitted is decisive of the case.

Assuming, as contended by the cross-complainant, that the contract was unconditional, that the time for delivery was not thereafter extended, that there was a breach of the contract on the part of the Wildman Manufacturing Company in failing to deliver the machines on dates fixed by the contract, and that the Davenport Hosiery Mills suffered, by reason of this breach, substantial recoverable damages, yet, if the chancellor was in error in directing a verdict in favor of cross-com plainant Davenport Mills on the question of waiver, the decree must necessarily be modified.

This question requires a consideration of section 49 of the Uniform Sales Act (chapter 118 of the Acts of 1919), which reads as follows:

"In the absence of express or implied agreement of the parties, acceptance of the goods by the buyer shall not discharge the seller from liability in damages or other legal remedy for breach of any promise or warranty in the contract to sell or the sale. But, if, after acceptance of the goods, the buyer fail to give notice to the selle of the breach of any promise or warranty within a reasonable time after the buyer knows or ought to Low of such breach, the seller shall not be liable therefor."

This section has not been heretofor construed by this court, but has been before the courts of other states, especially the courts of New York; the questions considered having arisen not so much with regard to its meaning as to its application to a given state of facts.

Wildman Mfg. Co. v. Davenport Hosiery Mills.

The purpose of this section, indeed, seems apparent, viz. to prevent the buyer from interposing belated claims for damages (too often a mere afterthought) as an offset to a suit begun by the seller for the purchase price.

As stated in the case of Regina Co. v, Gately Furniture Co. (Sup. 1915), 154 N. Y. Supp., 888, 889, affirmed (1916) 171 App. Div., 817, 157 N. Y. Supp., 746:

"It is very evident that the purpose of this statute is to prevent the very condition that seems to exist here, viz. the buyer retaining the goods and using them, failing to give any notice of any breach of the original agreement to the seller until it has been sued for the purchase price, and then setting up affirmatively a defense by which it is sought to wipe out all of the original purchase price and demand an affirmative judgment for an additional sum against the plaintiff."

In the case of Maggioros v. Edson Bros. (Sup. March 1917), 164 N. Y. Supp. 377, 379, it was said:

"This provision is intended for the protection of the seller. The design of it is to give the seller an early notice of the alleged defects. The purpose of the statute was to give the seller notice, before suit, nd not by suit."

.

Obviously, the questions which most often arise are: (a) Whether sufficient "notice" has been given to the seller.

(b) Whether this was given within a reasonable time." 1. While many of the cases, discussing this section of the Sales Act, deal with breaches of warranty as to the quality or condition of goods sold, it seems to be well settled that a counterclaim for damages due to the seller's failure to deliver at the time specified in the contract also

Wildman Mfg. Co. v. Davenport Hosiery Mills.

comes within its terms. Trimount Lumber Co. v. Murdough (1917), 229 Mass., 254, 118 N. E., 280; Mason v. Valentine Souvenir Co. (1917), 180 App. Div., 823, 168 N. Y. Supp., 159; Pennel v. N. J. Brass Corporation (Sup. 1921), 186 N. Y. Supp., 606. And see Shearer Co. v. Kakoulis (Co. Ct. 1913), 144 N. Y. Supp., 1077, 1081.

2. Ordinarily the questions arising under the last clause of section 49 (whether "notice" has been given, and if so, whether "within a reasonable time") are questions of fact to be determined by the jury. But, as in other cases where the facts are undisputed, the questio becomes one of law for the court. Marmet Coal Co. v. People's Coal Co. (C. C. A. 6th Cir.), 226 Fed., 646, 141 C. C. A., 402; M. & M. Co. v. Hood Rubber Co., 226 Mass., 181, 115 N. E., 234, 235; Chess & Wymond Co. v. La Crosse Box Co. (1921), 173 Wis., 382, 181 N. W., 314, 315; Trimount Lumber Co. v. Murdough (1917), 229 Mass., 254, 118 N. E., 280; Maggiores v. Edson Bros. (Sup.), 164 N. Y. Supp., 377, 379; Kaufmann v. Levy (March, 1918), 102 Misc. Rep., 689, 169 N. Y. Supp. 454; Mason v. Valentine Souvenir Co. (1917), 180 App. Div., 823, 168 N. Y. Supp., 159; Mastin v. Boland (1917), 178 App. Div., 421, 165 N. Y. Supp., 468; Stone v. Beim (Sup. 1919), 176 N. Y. Supp., 25; Matthes v. Benn (1919), 107 Misc. Rep., 633, 176 N. Y. Supp., 770; Hesse v. Gude Bros.-Kieffer Co. (Sup. 1918), 170 N. Y. Supp., 211. And see Kleeb v. Long Bell Lumber Co. (1902), 27 Wash., 648, 68 Pac., 202.

The case of Hesse v. Gude Bros.-Kieffer Co., supra, contains a very interesting discussion of the question of "reasonable time," in the course of which it is said:

"Reasonable time means what under the circumstances a reasonable, prudent man would do, and is always, it

Wildman Mfg. Co. v. Davenport Hosiery Mills.

would seem, properly speaking, a question of fact, with the usual proviso, however, that whether there is any evidence to support a finding of fact is a question of law, and this is doubtless all that is meant by the statement often found in the cases that the question of reasonable time is for the court."

3. The application of these principles to the instant case necessitates a review of the evidence bearing on this point, and incidentally a fuller statement of the whole case.

We shall assume, without deciding, that the contract in this case was made, as contended by cross-complainant Davenport Mills, about August 8, 1919, in a telephone conversation between Mr. Fred, the manager of crosscomplainant, and Mr. Allerton, a salesman o the complainant, Wildman Company. It is contended for the Wildman Company that Mr. Allerton was a mere salesman, with no authority to make an unconditional contract, and that, by reason of certain "pink slips" promptly mailed to the cross-complainant, the Davenport Mills, it was notified that the contract was made, as stated on the face of these slips, "subject to unavoidable delays."

As above stated, we do not find it necessary to pass on the contention that these pink slips constitute part of the contract, or the contention of cross-complainant that they could not affect or modify its terms. See Altkrug v. Wm. Whitman Co. (1919), 185 App. Div., 744, 173 N. Y. Supp., 669.

We shall assume: That the contract was unconditional. That time was of the essence of the contract, and that by its terms the complainant, Wildman Manufacturing Company, was obligated to deliver the forty-eight knitting

147 Tenn.-36