Frick Co. v. Fry

89 P. 675 | Kan. | 1907

The opinion of the court was delivered by

Greene, J.:

It is contended that the court erred in overruling plaintiff’s demurrer to defendant’s evidence, because of a failure of proof that he had returned or offered to return the machine to the place where he had received it. Under the original contract, before the defendant could rescind he was required to return the machine.

The law is. well settled in this state that where a machine is purchased, as this machine was, there can be no rescission until the property is returned to the place where it was received. The machine in question was defective, and notwithstanding ample opportunity had been given the plaintiff to make it do satisfactory work, and in this respect fulfil the conditions of the warranty, all efforts had failed; and because of this failure Fry refused to pay for the machine. Because. of this condition a new, or supplemental, agreement was entered into on September 10,1908, by which Fry agreed to store the machine for the plaintiff until June 15, 1904, it agreeing, as stated in the contract, “to put the separator in a first-class condition, by putting in new-style straw-racks, and stop the leaking, so the machine will do first-class thrashing and as good as is expected of any machine.” This was to be completed by June 15, 1904.

It is stated in the agreement that this supplemental contract is not to change any of the terms of the purchase contract except as therein specified. Under this clause it is contended that the provision of the purchase contract that the defendant must return the machine before he can rescind still remained in force. With this we do not. agree. Notwithstanding this provision the supplemental contract of necessity changed the relation of the parties, and with these changed relations different obligations arose. Before this contract was made Fry was in possession of the machine, as owner, and before he could have claimed a rescission he would have had to return the machine and surrender that claim of ownership. By the terms of the new contract his possession as owner was changed to a possession for the use of the plaintiff, for a definite time, and a particular purpose. A compliance by the company with the conditions of this agreement, within the time specified, might have resulted in restoring to Fry the possession of the machine as owner, but until the plaintiff had fully complied with its agreement Fry’s possession of the machine was the possession of the company. In the contract changing the nature of Fry’s possession no obligation was imposed upon him to return the machine to the place where he received it in case the company failed to fulfil its agreement. The evidence was conclusive that the plaintiff did not attempt to comply with its contract to repair and put the machine in proper order on or before June 15, 1904, and it is equally conclusive that upon such failure Fry promptly declared the contract at an end. This was all that was required of him to terminate his contractual relations with the plaintiff and entitle him to claim a rescission.

Objections are urged to the refusal of the court to give a number of instructions requested by the plaintiff, and also to the giving of instruction No. 7. Of those requested, some contain erroneous statements of law and others were inapplicable to the facts; and we find no error in the giving of instruction No. 7. Nor do we find any prejudicial error in the refusal of the court to set aside the special findings of the jury excepted to by the plaintiff.

The judgment is affirmed.