197 Ky. 573 | Ky. Ct. App. | 1923
Opinion of the Court by
Affirming.
Appellants, Coving-ton & Anderson, were dealers in farming machinery, including gasoline power Samson farm tractors, with, headquarters at Mayfield. Appellee Melvin, a farmer, contracted for the purchase of -one of said farm tractors. The contract reads:
“Subject to conditions printed on the back of this form, I pay herewith instruction fee ($65.00) and order Samson farm power specified below; to be delivered on -or about 3/25/12.
Samson model M tractor with platform and fen-
ders attached ....................................................................................$700.00
Samson model M platform and fenders........................... $50.00
Freight and factory.............................................................................. $35.00
Total amount this order, including freight ...............$785.00
“Buyer’s signature,
W. I. Melvin,
N. F. D. No. 1. Farmington, Kentucky.
“Order accepted and fee received.
Covington & Anderson.
By E. A. Anderson.
“For the sum of sixty-five dollars ($65.00), payment of which accompanies this order, you are to deliver the above tractor to my farm on a truck, and send with it a competent man, who shall demonstrate it, to do satisfactorily work for which it is intended, and to give me or my operator all instructions necessary for the proper operation, care and maintenance of the tractor.
“It is understood that if, in demonstration, the tractor does not handle the work to my satisfaction the within instruction fee of $65.00 shall be returned to me.
“Upon completion of satisfactory tractor demonstration, I agree to accept and pay cash for the above purchased Samson farm power, including freight from factory. ’ ’
At the time of making the contract appellee Melvin paid the instruction, fee of $65.00. The tractor was delivered but owing to some defect or deficiency it did not work satisfactorily and appellants later tried to and did fix it and a demonstration was to be had. Before .a satis^factory demonstration was made and before appellants had demanded or were entitled to receive the contract price of the tractor appellee Melvin paid them $400.00 on the price of the machine with the express understanding, as claimed by him, that said sum should be returned to Mm by appellants in case the machine did not prove satisfactory. Appellants deny that the payment of $400.00 was received by them under any such agreement,, but say that appellee expressed himself satisfied with the tractor and its performance at the several previous demonstrations and offered to and did pay the four hundred ($400.00) dollars on an acceptance of the tractor, and the same was received by appellants only because appellee did not have the full price and with a promise from appellee to pay the balance in a few days. Appellants say further that said payment was made after a full demonstration of the tractor and after appellee had accepted the same and in confirmation of such acceptance; that by the terms of the contract the tractor was to do only such work as it was built to do, and the said writing mentioned in plaintiff’s petition contained all of the contract, and as appellee did not ask for a reformation of the contract he could have none without which the greater part of appellee’s evidence was incompetent. -
Judgment affirmed.