Geiser Manufacturing Co. v. Taylor

67 N.Y.S. 30 | N.Y. App. Div. | 1900

LAUGHLIN, J.

This is a replevin action brought to recover the possession of the “old Stevens thresher, No. 5,397,” referred to in the order, which constituted the contract. Plaintiff shipped the new threshing machine to defendant, and it arrived at Farmer station on July 3d. Defendant paid the freight, unloaded the machine, and took it home on July 4th. On the 20th day of July he started to use it threshing for a farmer named Rappleye, having previously notified plaintiff’s agent, who was present and took charge of the machine that day. Defendant testified that, after the machine had been running a while, he told plaintiff’s agent that he did not have power enough to run it, and was satisfied that he could not run it any further; that the agent replied that the power was sufficient, and that when it got “warmed up—loosened up—it would run a great deal different”; and that he requested the agent to continue with him on the next threshing job for a farmer named Howell, to- which the agent replied that it would not be necessary, that defendant “knew enough about the machine”; and to this defendant replied, “I don’t know anything about it; you will have to instruct one of my men;” whereupon the agent did instruct one of defendant’s men. Plaintiff’s agent, who supervised the running of the machine at the first thresh: ing, testified that the defendant’s engine was a 10 horse power engine; that it pounded, and “was quite generally out of shape,” and “was not in good shape to do a fall’s threshing with”; that shortly after it started the water glass blew off, and he told defendant he thought it was hardly safe to run the engine without a water glass, to which defendant replied he could run it without; .that the function of a water glass is to indicate the amount of water in the boiler, and that an engineer feels safer in running a machine to its full capacity with a water glass by which"he can tell the state of the water; that the machine did perfect work, and at the time he left it it was doing good work; that the only difficulty was with the engine, which did not develop" the power necessary to work rapidly, but that this would improve as the grain became dryer, and the new machinery became smooth from use; that defendant seemed satisfied with the working of the machine, and did not make any complaint whatsoever, or request the agent to remain longer, but, on the contrary, said he thought his men were capable of running it if the agent would instruct them, which he did. While threshing for Howell, the day after plaintiff’s agent departed, defendant discovered that considerable wheat was carried out with the straw to the stack, but he did not observe that the machine was not doing good work while the agent was present. The only objection he claims to have made to the agent is that it ran hard, did not do the work rapidly, and that there did not seem to be sufficient power in the engine to get the speed up properly. After finishing Howell’s threshing, defendant moved the machine to thresh for one McClvoy, but one of the wheels of the machine broke through the floor, and there was not room to operate it in the bam, and consequently he did no threshing there. Without trying the machine further, he took it to Farmer station on July 2áth, and sent a telegram dated that day to plaintiff, saying: “Cannot accept machine. Don’t give satisfaction. Will deliver to-day,”—and on the same day wrote plaintiff as follows:

“Farmer, N. Y., July 24, 1899.

“Geiser Mfg. Co.—Dear Sirs: Cannot accept the machine. It does not give satisfaction. Will deliver machine to Farmer station to-day.

“Yours, truly, Thomas Taylor.”

Upon receiving the telegram, plaintiff sent its agents who had negotiated the sale of the machine to call upon defendant. They met him returning home after leaving the thresher at the station, and told him that if there was anything wrong with the machine they would rectify it, and requested him to take it back and try it, which he declined to do; saying that he did not want anything more to do with it, and that he could not run it. They subsequently called upon him, and endeavored to persuade him to take, it back, and "give them a chance to see what, if anything, was the matter, and he said he would have nothing more to do with it, and he did not. Before receiving the machine, but after giving the order, defendant was informed, by a man who had run a similar machine for two years, that his 12 horse power engine would not develop sufficient power to run it, and he called on plaintiff’s agent for the purpose of countermanding the order, but was informed that the machine had already been shipped. Upon the trial defendant was asked what was his real objection to the machine, and his only answer was, “Three objections,— it was too high, it was too heavy, and it took too much power to run it.” It will be seen that the contract required defendant to furnish an engine that would run the fly wheel at the rate of 200 revolutions per minute. According to defendant’s own testimony, it is doubtful whether the engine was run so as to fulfill the contract in this regard. Defendant testified that he ran it with all the power he had, and it probably made 150 to '200 revolutions per minute. It further appeared that there were many of these machines in general use, giving satisfaction, and that there could be no difficulty in this machine that could not have been remedied, inasmuch as the parts of the machine were made and sold separately and kept in stock in Auburn. Defendant’s testimony that this was a 12 horse power engine was hearsay and unsatisfactory, and no finding has been made on that subject.

The trial court found against plaintiff solely upon the ground that the threshing machine did not work properly, in that it suffered grain to pass out with the straw. As .has been seen, this objection was not made known to plaintiff or its agent, and this difficulty did not occur while the agent was in charge. Under the contract of sale, plaintiff was entitled to written notice of any difficulty discovered by defendant in the working of the machine during the five days allowed for testing, and a reasonable opportunity to remedy the defect or to substitute another thresher. On account of his failure to test the machine properly, and notify plaintiff, in accordance with the terms of the contract, of any defect in its working revealed by such test, we think defendant is chargeable with having accepted it. Prior to the commencement of the action, plaintiff duly demanded of defendant the execution of the notes and the delivery of the old thresher, which demand was refused. Evidence was erroneously received' of declarations of witnesses made out of court inconsistent with their testimony, without such witnesses having been first interrogated concerning the same, but the foregoing considerations require a reversal upon the merits.

The judgment appealed from should be reversed, and a new trial granted, with costs to appellant to abide the event. All concur.