95 Kan. 685 | Kan. | 1915
The opinion of the court was delivered by.
The Geo. O. Richardson Machinery Company sold a threshing' machine to Carl Harrison, taking as security a number of notes given to Harrison by farmers in consideration of threshipg to be done by him. The company sued C. N. Brown, the maker, upon one of these notes. He filed an answer alleging that the note was given to Harrison in order that it might be endorsed to the company as collateral security; that to induce Brown to give the note the company guaranteed him that the machine was in ‘ good 'condition and would do good work; that Brown gave the note by reason of the warranty; that in fact the machine was defective, and by reason of its defects Brown, whose wheat was threshed by it, suffered a loss of over $600.
The case is unusual, in that the counterclaim amounts to an action upon a warranty of the quality of a machine, given, not to its buyer, but to one who had arranged with the buyer for its use, and who assisted the buyer in the purchase by giving his note to be used as security for the price. Unusual as the circumstances are, no reason is apparent why a warranty so given and relied upon may not be the basis of a claim for whatever damages result from' its breach.
■ The threshing machine was a second-hand one, not manufactured by the plaintiff. It was sold to Harrison under a written contract, and no warranty whatever was given him concerning it. In fact the agreement expressly excluded a warranty. Brown is not simply resisting the payment of the note on the ground that its consideration as between himself and Harrison has failed, and that it is open to the same defense in the hands of the company because it is not an innocent holder. -His relief would of course be confined to defeating its payment, if that were the theory. He is asking compensation for losses he has suffered by reason of the machine not turning out to be as warranted. His evidence tended to show these facts: The company desired to sell the machine to Harrison, but was unwilling to do so without security, which he was unable to give. Therefore the company, through its agent, solicited a number of wheat raisers to arrange with Harrison to do their threshing, giving him their notes in part payment, in order that these might be at once endorsed over to the company as collateral security for the purchase price. Brown, among others, was approached in this way, but at first refused to have anything to do with the matter because of a doubt as to the efficiency of the machine. The agent then, in order to secure his cooperation, assured him that the machine was in good condition and would do good work, and in
Two cases are cited as having some points of similarity. They are quite different, however, in their facts and in the principles involved. In one a farmer gave his note to a machine company as security, in sole consideration of the buyer’s agreement to thresh his grain. The buyer failed to do this, and it was held that his default was not available to the maker of the note as a defense against the company. (Terwilliger Ad’m. v. Richardson Machine Co., 15 Okla. 664, 83 Pac. 715.) In the other the company induced a number of farmers to give their notes to the buyer of a machine, to be endorsed to the company as collateral security for the price, upon a promise given by the company that the buyer would thresh their grain; he failed to do so, and it was held that the company could not recover on the notes. (Aultman v. Knoll, 71 Kan. 109, 79 Pac. 1074.) In neither was any warranty of the machine involved. There is no contention in the present case that the company undertook that Harrison should thresh the defendant’s wheat, or that it is liable for any fault of Harrison’s.
Assuming the facts to be as asserted by Brown, he gave his note upon the strength of the company’s guaranty to him that the machine would do good work; he had a right to rely on this warranty, and if he suffered in consequence of its breach he should be compensated for his full loss, for which the mere defeat of the note' might be an inadequate remedy. Whether the language of the company’s agent, undertaking to guaranty the quality of the machine, was intended and understood as a warranty to Brown of its condition
It is contended, however, that Brown’s conduct precluded the allowance of the full amount fixed by the verdict, because upon his own statement he continued the use of the machine after learning of its defects. According to the evidence, the threshing of the wheat lasted from Monday noon until Saturday noon. The machiné worked badly from the first. On Tuesday Brown tried to reach the company’s agent by telephone, but not succeeding in finding him, left word at his office that the machine was not working, and that he wanted him to come out. On Wednesday afternoon he stopped the machine. On Thursday he telephoned the agent that he had done so, and he answered that he would be right out. He came, bringing with him a machinist. Some changes were made, resulting in an improvement, which, however, proved temporary. Brown did not after Thursday make a. request of the agent for further repairs. Harrison, however, con
The instructions are complained of, but we think they fairly presented the issues. It is strongly urged that the verdict is so opposed to the weight of the evidence as to be obviously unjust and unreasonable. We do not find, however, that it is so without support as to justify this court in setting it aside.
The judgment is affirmed.