83 Kan. 64 | Kan. | 1910
The opinion of the court was delivered by
The American Electric Telephone Company brought this action against the Emporia 'Telephone Company to recover upon an account for telephone supplies which the Emporia company had purchased from the American company. The account
There is little reason to complain of the result. Attached to the first order of appellant for supplies was a memorandum, signed by its manager, that “this equipment to be installed at the expense of the American Electric Telephone Company, on sixty days’ approval. If, at the expiration of sixty days, the equipment fails to give efficient service, the same can be returned, but if the service should prove efficient we agree to accept and pay for the same as above.” Long after the purchase of the telephones there were some complaints made by appellant that they did not work well, but none of them was ever returned to appellee. Instead of returning them appellant sent eleven additional orders for telephones of the same kind, and these orders were sent from time to time during a period o'f fourteen months after the first lot had been received and installed.
There is no room for a contention, and in fact appel
It is contended, however, that there was an implied warranty that the equipment was adapted to the special purposes for which it was purchased, and that this, had been broken. The appellee was a manufacturer, but the sales were not made by sample nor were the-telephones manufactured specially for appellant. On the other hand, they appear to have been made in the ordinary course of business of the appellee, for the general trade, and under our decisions the sale did not carry an implied warranty that the articles sold should' meet the purposes or expectation of the buyer. (Lukens v. Freiund, 27 Kan. 664; Ehrsam v. Brown, 76 Kan. 206.)
There was some’ conflict in the evidence as to the-time when complaints were made' of the telephones, purchased, but under the testimony the court was well; warranted in holding that the objections to the telephones were not made in a reasonable time, and, as we-have seen, appellant never returned or offered to return the telephones purchased. The retention of the-
The judgment is affirmed.