182 Ky. 435 | Ky. Ct. App. | 1918
Opinion of the Court by
Reversing.
Plaintiff, C.' 0.. Brown, brought this suit in equity against the International Harvester Company of America and its alleged agent, John F. Hayden, to rescind the sale of an automobile truck for breach of warranty. The case was transferred to the common law docket for a trial of the issues of fact. ..The jury found for plaintiff. Judgment was then rendered, rescinding the sale and awarding a money judgment in the sum of $637.70.. The defendants appeal.
While numerous errors are assigned for reversal, the only question we deem it necessary to determine is whether plaintiff offered to rescind the coritract and to return the truck within a reasonable time after he learned of the breach of warranty. • To this end we shall assume without deciding, that the defendant, John F. Hayden, and Robert Huffard were agents of the International Harvester Company, with authority not only to sell the truck but to .rescind the contract. According to plaintiff’s evidence, the alleged sale was made in the month of November, 1915.- When the truck was delivered it was accompanied by a demonstrator, who explained the use of the truck for a period of about ten days. The purchase price of the truck was $850.00. For this sum, plaintiff executed seventeen notes for $50.00 each, payable monthly. The company represented that the truck would do the work of three wagons drawn by horses, and that it would guarantee it in every respect. A few days thereafter plaintiff began to have trouble with the chains and the truck was frequently out of commission. This happened right along in January and February, and possibly in December. In the month of April or May, 1916 (he didn’t remember the exact date), he notified Mr. Hayden that the machine would not do the work and was
Though it be conceded that plaintiff’s first offer to return the truck in April, 1916, was made within a reasonable time, we are unable to take the same view of his subsequent offer made in the month of November. While he testifies that Huffard told him to take and use the machine and the company would make it work, he admits that within a few days after the machine was repaired by the company it failed to work properly. While he says that after that time he frequently made complaints to Huffard, there is no evidence to the effect that Huffard thereafter requested him to use the machine under a promise that the company would make it work satisfactorily. Indeed, plaintiff’s own evidence shows that he did not use the machine merely for the purpose of testing it, but regularly used it in delivering groceries from early in the morning until late at night, for a period of about six months after the company had failed to make i t work properly. By that time, the rubber was worn off the tires and the machine was in bad condition. It was then impossible for plaintiff to place the defendant in statu quo. While ordinarily it is for the jury to say whether the offer to return was made within a reasonable time, yet
Judgment reversed and cause remanded for new trial consistent with this opinion.