41 Kan. 414 | Kan. | 1889
Opinion by
The note sued on was given in part payment for a threshing-machine. The machine was sold by the plaintiffs to the defendants for the sum of six hundred and fifty dollars, and notes were taken in payment. This sale was made in July, 1882, and the first note was made payable in the October following; others in a year from that time, and some still later. The note in controversy was payable in October, 1883. The machine was sold by an agent who resided in Ellis county. The plaintiffs were residents of Davenport, Iowa. The contract under which the machine was purchased was in writing, and contained the following warranty of the machine:
“The machine ordered herein is purchased and sold subject to the following warranty and agreement: That it is well made, of good materials, and with proper management is capable of doing first-class work; that the purchasers shall have three days to give it a fair trial, and if it should not work well, written notice, stating wherein it fails, is to be given to the agent from whom it is received, and to John S. Davis’s Sons, Davenport, Iowa, and a reasonable time allowed to get to it and remedy the defect, if any, (the purchaser rendering necessary and friendly assistance,) when, if it cannot be made to do good work, it shall be returned to the place where received, and a new machine given in its place, or the notes and money will be refunded. Continued possession of the machine shall be evidence of satisfaction — it being understood and agreed that if the purchaser does not make full settlement with cash or approved notes for the machine upon its delivery to him, he thereby waives all claims under this warranty. (No agent has authority to change the above warranty.)”
The defendants claimed damages for a breach of this warranty.
The errors alleged are quite numerous, and many of them
Under the written warrauty and terms of sale it was the duty of the defendants to notify the local agent in writing, and also the plaintiffs at Davenport, Iowa,;if the machine failed to do good work. This they attempted to comply with by giving a verbal notice to the local agent and requesting him to write to the plaintiffs, which he testifies he did do. Afterward an agent came and examined the machine, but there was a conflict of evidence as to whether he came in compliance with the request of the letter written by the local agent, or by the direction of the plaintiffs alone, and therefore we are forced to the conclusion that plaintiffs may have waived such written notice. By the terms of the contract, however, the defendants, in case the machine failed to do good work and was not remedied by the plaintiffs when requested so to do, were to return the thresher to the place where they received it. On this question there was no dispute, and as to the attempt to comply with this requirement there is no conflict. On the second day after they received the machine they did notify the local agent verbally that the machine was not giving satisfaction, and requested him to inform the company of that fact. They then said, “If the machine does not do good work we
Again, in 1883, when the note sued on was sent to an attorney for collection, and he went out to make the collection, the defendants told him he could take the machine. Plaintiffs had a chattel mortgage on the machine and the attorney had the note and mortgage in his possession for collection, and he told them that if he took the machine he would take the same by reason of the lien created by the mortgage, and not' otherwise. This is the only pretense on the part of the defendants of the return of the machine, and we think they entirely failed to establish that as a fact. They were bound to return the machine, or offer to return the machine, to somebody that had a right to receive it, and if by the acts of the plaintiffs they were prevented from returning it, then of course they would be relieved of that duty; but no such excuse has been shown by them, and their evidence entirely fails to show that defense. In addition to this, the record discloses this further fact, that they continued to use the machine during the
It is therefore recommended that the judgment of the court below be reversed, and the cause remanded for a new trial.
By the Court: It is so ordered.