37 Kan. 413 | Kan. | 1887
The opinion of the court was delivered by
Adolph Ehrhard brought an action against D. M. Osborne & Company, a corporation under the laws of the state of New York, alleging in substance that on or about the 28th day of June, 1883, he purchased from the agent of the company at Clay Center, Kansas, a combined reaper and binder, for the sum of $165; that by the terms of the contract he was to return the machine if it did not work in a good and satisfactory manner; that in payment he gave his negotiable promissory note for $150, due the first day of the following October, and paid in cash the sum of $15; and that
The next ground of error assigned, is that the verdict is contrary to the weight of the evidence. This is not a sufficient ground for a reversal. We are not permitted to enter upon the task of weighing conflicting testimony with a view of determining where the preponderance is. ' A verdict cannot be set aside in this court if there is testimony which fairly tends to support it, although the preponderance might appear to us to be against the result reached. (K. P. Rly. Co. v. Kunkel, 17 Kas. 145.) There is evidence here to establish every essential fact relied on. In fact, the testimony satisfactorily shows that the machine utterly failed to come up to the requirements of the alleged warranty. The agent from whom it was purchased, as well as the general agent of the company, both tried to remedy the defects, and both failed to make it do the work for which it was intended, and the former admitted on the witness stand that it did not work well.
The giving of the sixth and eighth instructions is a subject
“All our machines are warranted to be well built, of good material, and capable of cutting, if properly managed, from ten to fifteen acres per day. If on starting the machine it should in any way prove defective, and not work well, the purchaser shall give prompt notice to the agent of whom he purchased it, and allow time for a person to be sent to put it in order. If it cannot then be made to do good work, the defective part will be replaced, or the machine taken back, and the payment of money or notes returned.”
Objections are made to the rulings of the court upon the admission of testimony, and upon other instructions; but as these were not included in the grounds stated in the motion for a new trial, they are not before us for consideration. (Nesbit v. Hines, 17 Kas. 316; Decker v. House, 30 id. 614.)
The judgment of the district court will be affirmed.