150 Ky. 307 | Ky. Ct. App. | 1912
Opinion of the Court by
Affirming.
. On the afternoon of Sunday, July 1, 1906, J. M. Pier-sail, as the agent for his wife, Nina Piers all, the appellee, bought of the general agent of the Huber Manufacturing Company, at Lexington, Kentucky, an eighteen horse power traction thresher engine. He took it that night to the farm of one Tanner, in Payette County, where he endeavored to thresh with it on Monday. Finding it unsatisfactory, he returned it to the Huber Manufacturing Company agency on Tuesday morning. When he bought the engine he had with him a blank check signed by his wife. This was filled out for $650 and given to the agent. On Monday morning, Mrs. Pier-sail came to town and executed her note for $645. This action was brought to recover the $650 cash payment and to cancel the $645 note. Pending the litigation the Huber Manufacturing Company presented this note at the bank where it was made payable; whereupon it was paid and charged to Mrs. Piersall’s account. She then amended her petition, asking the recovery of this sum also. 'The trial court gave her the relief desired, -and the Huber Manufacturing Company appeals here.
The facts are in sharp conflict. The plaintiff’s case is as follows: J. M. Piersall says that he bought for his wife the engine, on the Sunday afternoon; that nothing whatever was said about any written order or contract, and that none was prepared; that it was agreed that the engine would do good work, and that if it did not the engine should not be the property of the purchaser; that it was agreed that his wife was to execute her note for the
On the defendant’s side Walker testifies that he told Piersall that there would have to be an order given for the engine; that he, Walker, secured an order blank, filled it up and pushed it over toward Piersall, asking him to sign it; that Piersall said no, that his wife would have to do that; that he asked Piersall whether his wife would come in the next morning and sign the papers, or whether a man should be sent out to her house with them; that Piersall said that there'was a telephone in her house and that Walker could call her up; that he, Walker called her up by phone, told her of the sale and
In rebuttal plaintiff introduced J. M. Piersall, a Mr. Beck, a Mr. Couchman, Mr. Chelsea Piersall, a Mr. Lay-ton and a Mr. Creed, all of whom testified that about ten o ’clock at night on the nights of July 4th and 5th some of them mentioning the one date, some the other, and some both, they had seen the Huber warerooms lighted up and three men at work about this engine. These nights intervened between Piersall’s use of the engine and the use of it on the Clark place.
It satisfactorily appears from the testimony of plaintiff’s workingmen witnesses and of other disinterested witnesses that for some reason the engine would not work at the Tanner place; and that by using the utmost efforts they only succeeded in threshing in an entire day
In the written order or contract signed by Mrs. Piersall it was agreed that if the engine ’did not, within six days from its first use, do the work for which it was sold, the purchaser should immediately give written notice to its home office in Marion, Ohio, by registered letter, and written notice also to the local agent through whom the purchase was made, stating particularly wherein the engine failed to do its work; and further, that a reasonable time should be allowed the company to get to the engine with skilled workmen, remedy the defects, etc. It is admitted that no such notice or notices were given; If this written contract was the contract between the parties, it is evident that the plaintiff must fail; for .such a provision as to notice and opportunity to examine and repair has been upheld by this court in the case of J. I. Case Threshing Machine Co. v. Mattingly, 142 Ky., 583; Nichols & Shephard Co. v. Caldwell, 26 K. L. R., 136; and other cases. Nor if the written contract be the contract, can Mrs. Piersall rely upon her supposed lack of knowledge of its contents. One who signs a written contract without reading it takes the risk. J. I. Case Threshing Machine Co. v. Mattingly, supra. Nor if the verbal contract made on Sunday by her husband as her agent was merged into the written contract signed by her on Monday morning, can she recover. '
First, it is proper to express our conclusion that the testimony for plaintiff shows that on Monday the engine did not perform its work; and that it was so far short of performance as to justify its return to the company if the contract permitted its return. About this there is not much of difficulty, notwithstanding the marked conflict in the testimony in .behalf of the litigants. Mr. Walker says that at the time of the sale he told Piersall, the agent, that there would need to be a written order. He
The judgment of the trial court is in conformity with these views and is, therefore, affirmed.