Graff v. D. M. Osborne & Co., No. 7725

No. 7725 | Kan. | Jul 15, 1895

The opinion of the court was delivered by

Allen, J.

: The view we take of this case renders it unnecessary to consider the subject of implied warranties, so fully and ably discussed in the briefs. The rights of the parties were fixed by the written contract and the two letters read in evidence. If the description of the article sold were to be taken solely from the contract of March. 27, 1889, the plaintiff might find it somewhat difficult to prove that it had ever delivered silver binding twine. Of course, none of the parties to the agreement understood that there was to be any silver in the twine. This is made clear by the letter written by Mr. Terpenning, the plaintiff's manager at St. Louis, under date “4-5-89.'' This letter, while denying the authority of Wilson to. guarantee, and insisting on an erasure of the clause written on the margin by him, makes the direct statement and representation “We deal in nothing but first-class twine.” The defendant, by his letter of the 8th, put the plaintiff directly on notice that he relied on the declaration contained in Terpenning’s letter. As the defendant could not possibly inspect the twine before it was purchased, he had a right to rely on the statement in the letter of the plaintiff’s manager as to the quality of the goods to be furnished. If the plaintiff failed to furnish first-class twine as represented, he had.a right to a reasonable time after receipt of the twine in which to inspect it, rescind the whole contract, and return the goods received, or, if he so elected, he had the right to retain the inferior article, and recoup the damages sustained by reason of the failure of the plaintiff to furnish goods of the proper quality.

The judgment is reversed, and a new trial ordered.

All the Justices concurring.