29 S.W.2d 617 | Ky. Ct. App. | 1930
Reversing.
A.C. Morris Co. sued H.L. Heaton upon a promissory note to recover $375 with interest. The Circuit Court rendered a judgment for the defendant, and the plaintiff has entered a motion for an appeal.
The defense to the action was rested upon the ground that the note was given to pay for a De Laval Milking Machine which was represented and guaranteed to milk cows better than could be done by hand, to increase the production of milk, to save time and labor for defendant, and to satisfy defendant in the respects stated. It was alleged that the machine had failed in all particulars covered by the warranties. It was further alleged that the title to the machine was to remain in *67
plaintiff until the note was paid, or until defendant was satisfied with the operation of the machine; and that defendant was to have a reasonable time to try out the machine and to determine whether he desired to keep it. If the machine did not prove as represented, it was to be returned and the note canceled. It was further alleged that a few days after the machine was installed the defendant became ill and was compelled to go to Florida for his health, where he was detained for about six months. He then returned and tried the machine, found it a failure, and told the plaintiff to take it back. It appeared that the note sued upon was a renewal of a similar note given six months earlier. There was a conflict in the evidence respecting the circumstances of the renewal, and in many other particulars, but the case turns on facts which are not in dispute. It will be noted that no counterclaim to recover damages for breach of warranty was pleaded. Cf. Cantrell v. Dotson,
The defense depends upon the asserted right of defendant to rescind the contract. If machinery, or other personal property, be sold under a guaranty that it will serve some purpose, or, in certain particulars, prove satisfactory to the purchaser, the right of rescission exists for a reasonable time after discovering the facts respecting defective performance, and a rescission is accomplished by a return of the property at the place of delivery. The right must be exercised, however, without unreasonable delay in discovering the defects, or deciding upon that course of conduct. 35 Cyc. 151; Paducah Hosiery Mills v. Proctor Schwartz,
In view of the admitted facts and the principles of law pertaining to the remedy of rescission relied upon in this case, it is clear that the plaintiff was entitled to recover upon the note. The circuit court erred in refusing to direct a verdict for plaintiff as requested at the close of the evidence for defendant. The other questions raised on the record and discussed in the briefs, and not necessary now to be decided, will be reserved. *70
The motion for an appeal is granted, and the judgment reversed for proceedings consistent with this opinion.