137 Ky. 180 | Ky. Ct. App. | 1910
Opinion of the Court by
Reversing.
The J. I. Case Threshing Machine Company is a corporation and exists under the laws of the state of Wisconsin; its place of business being Racine, Wis. The appellees D. E. Patterson and J. A. Carter reside in Larue county, Ky.; Patterson at the time this cause of litigation arose being the local agent of the machine company at Hodgenville, and the brother-in-law of his co-appellee Carter. On July 11,.1906, the J. I. Case Threshing Machine Company sold a threshing machine to J. A. Carter, through its local agent, D. E. Patterson, and for a part of the purchase price J. A. Carter executed and delivered to the company his three notes, which are described as follows: The first was for $238, and due on or before September 1, 1906; the second was for $213 and due on or before September 1, 1907; the third was for $213, and due on or before September 1, 1908. To secure the payment of these notes a chattel mortgage was executed and delivered by the purchaser, Carter, to the machine company, giving it a lien on the machinery purchased, and as additional security I). E. Patterson executed and deliv
This guaranty is as follows:
“Hodgenville, Ky., July 11th, 1906.
“For value received I guarantee payment of three notes, viz: One note for $238.00 dated July 11th, 1906, due Sept. 1st, 1906, int. at 6 per cent. — one note for $213.00 dated July 11th, 1906, due Sept. 1st, 1907, int. at 6 per cent — one note for $213.00, dated July 11th, 1906, due Sept. 1st, 1908, int. at 6 per cent., signed by J. A. Carter payable to J. I. Case Threshing Machine Co., and waive presentment, demand, protest, and notice of non-payment and all defenses of want of diligence in collection and bringing suit and consent to any change of securities, and that said notes may be renewed or extended from time to time (at an increased rate of interest), without notice to me, and hereby waive any right to any mortgage security held for the payment of said notes until all the indebtedness secured by said mortgage is fully paid.
(Signed) D. E. Patterson.
"Witness: J. K. Curry.”
The contract for the sale and delivery of the machinery is in writing, and contains the following guaranty: “It is warranted to be made of good material, and durable with good care, to do as good work under same conditions as any made in United States of equal size and rated capacity, if properly operated by competent persons with sufficient steam or horse power, and the printed rules and directions of the manufacturer intelligently followed.
“If by so doing, after trial of ten days by the purchasers, said machinery shall fail to fulfill the war
J. A. Carter, after purchasing the machine, used it in threshing wheat in Larue county during the seasons of 1906 and 1907, and tendered it back to the company in July, 1908. The company refused to receive it, and both Carter and Patterson, his guarantor, having refused to pay the notes, this suit was instituted in the Larue circuit court for a judgment upon the notes and to enforce both the mortgage and guaranty. J. A. Carter for answer pleaded a breach of the warranty, and prayed a rescission of the contract of purchase and the surrender up and cancellation of his notes. D. E. Patterson, the guarantor, adopted the defense of Carter, as to the breach of warranty, and, in addition, pleaded want of consideration for his contract of guaranty. After the issues were formed and the evidence taken, the case was submitted to the chancellor, who adjudged a
The undisputed facts in this case show that Carter took the machine in his charge on the 11th day of July, 1906, and used it throughout the threshing season of that year. It is true he made complaints of certain defects and the agent sent experts several times to remedy them; and, while Carter complains that the thresher did not do satisfactory work, yet he kept it throughout the season, and practically repeated the same experience with it throughout the the threshing- season of 1907. He refused all the time to pay the notes which had fallen due, but he did not return or offer to return the machine until July, 1908, having left it in the woods at the foot of Muldraugh’s Hill, exposed to the weather during- the winter intervening between the close of the threshing-season in 1907 and July, 1908. He admits that he did not give the appellant written notice, or any notice, that the machine was not working in accordance with the written contract existing between him and it. On the face of the contract of warranty, a copy of which was in the possession of appellee- Carter, there was written the following stipulation: “No person has any authority to waive, alter, or enlarge this contract, or to make any new or substituted or different contract, representations or warranty. Salesmen, mechanics and experts are not authorized to bind the company by any act, contract or statement.”
In the body of the contract of purchase there is the following stipulation: “No representation made by any person as an inducement to give and execute this order shall bind the company.” It is proved without
And then we held that the failure of the purchasers to return the thresher for one whole season was unreasonable and precluded them from a right to a rescission of the contract. The judgment of the circuit court was reversed with directions to enter a judgment in favor of the machine company. The case of Wisdom, etc., v. Nichols & Shepherd Co., 97 S. W. 18, 29 Ky. Law Rep. 1128, was in all substantial respects identical with that at bar. We there held that the purchaser of machinery was bound by the written terms of the contract of purchase, and the stipulation that no general or special agent, or local dealer, was authorized to make any change in the warranty, and that workmen or experts were not agents and had no authority to bind the company by any contract or statement, was binding upon the purchaser and precluded his relying upon any alleged statement of such agents, workmen, or experts. After reciting the fact that the purchaser had discovered the defects in a few days after the purchase and had given notice of the unsatisfactory working of the machinery, but still retained it, although the seller failed to remedy the defects, we held that as the purchaser kept the machinery he must pay the purchase price, although it did not come up to the warranty. In the opinion it is said: “The contract here affords to the purchaser a remedy, if the warranty is broken, that will at once relieve him from all liability. He can return the machine and demand his purchase notes, thereby canceling the contract; but, if he elects to retain the property in its defective condition, he must pay the purchase-price. (Authorities omitted.)
'These cases are conclusive of the right of J. A. Carter to rescind the contract or refuse to pay his notes. He kept the machine and operated it two frxll summers, after he knew of the defects, and failed to return it after the end of the second season, but put it in the woods, covered by a tarpaulin, all of one winter. Clearly he cannot have a rescission of his contract under these circumstances. Nor can he resist the payment of the purchase price. No agent, expert, machinist, or other workman was authorized to make any alteration in the contract by which he purchased the thresher. What they said or did can in no wise avail him. In order to be relieved from the payment for a defective thresher, he must have
As to the defense of the guarantor, D. E. Patterson, in so far as he adopted the defense of J. A. Carter, he is bound by the result as to Carter. As to his defense of no consideration, we think he failed to substantiate it. It is true he says that he signed the guaranty after the machine was delivered to Carter and tbe notes of the latter delivered to the company, but the evidence satisfactorily shows that he had agreed in advance to guarantee the notes; the company having notified him that an investigation showed that Carter was financially insolvent, and, in order to make the sale, Patterson agreed to guarantee the notes, only stipulating that Carter should not know of the guaranty, and Carter’s evidence showed that he did not know of it until after he had refused to pay his notes.
Por these reasons, the judgment -is reversed, witli directions to enter a judgment in favor of the appellant against both defendants for the amount claimed in the petition.