191 Ky. 433 | Ky. Ct. App. | 1921
Reversing.
In the month of March, 1917, the J. I. Case Threshing Machine Company sold to R. L. Rose and W. C. Rose a plow and engine for the sum of $1,168.00, of which the purchasers paid one-half in cash and executed their note for the balance, payable December 1,1917.
The contract contained the following provisions:
£ £ Said machinery is purchased upon and subject to the following mutual and interdependent conditions, and none other, namely: It is warranted to be made of good material and durable with good care, and to be capable of doing more and better work than any other machine of equal size and proportions, working under the same conditions on the same job, if properly operated by competent persons, and the printed'rules and directions of the manufacturers intelligently followed. The condition of the foregoing warranty is that if, after a trial of six days by the purchasers operating in the manner specified and machinery shall fail to fulfill the warranty, written notice thereof shall at once be given to the J. I. Case T. M. Company at Racine, Wisconsin, and also to the dealer from whom received, stating in what parts and wherein it fails to fulfill the warranty, and reasonable time shall be given to said company to send a competent person to remedy the difficulty (unless it be of such nature that a remedy may be suggested by letter), the purchaser rendering necessary and friendly assistance and co-operation, without compensation for labor or material furnished, and the company reserving the right to replace any defective part or parts. If, after giving the notice and opportunity to remedy the difficulty complained of, as above provided, the company fails to send a representative to remedy said difficulty (or to suggest an efficient remedy by mail), or if upon its attempt to remedy the same, the machinery cannot be made to fill the warranty, the part that fails to be returned immediately by the purchaser, free of charge to the place where it was received, and the company notified thereof; whereupon the company shall have the opportunity either to furnish another machine, or part, in place of the one so returned, which shall fill the warranty, or to return the notes, or money received for the machine or part so returned, and the contract shall be rescinded to that extent, and no further claim made on the company.”
Though the contract was signed in Garrard county, the machinery was delivered to the purchasers at Lexington, where E. L. Eose executed for the cash payment a check containing the words, “Satisfaction guaranteed.” On their way home the Eose brothers had trouble with the engine, and notified the bank not to pay the check. The company’s agents told them to take the plow and engine on, and that they would make the engine work all right. After the purchasers got the machinery home, they plowed and disked from 190 to 225 acres of land. However, they complained to the company that the machinery would not work, and on two or three occasions the company sent its representatives to make repairs. Though the company’s representatives say that the machinery worked all right when they were there, and the purchasers signed statements to that effect, the purchasers claim that the statements were obtained by fraud, and that the engine never did work satisfactorily. In the month of November following, the purchasers abandoned the machinery, after the last representative of the company had failed, as they claim, to make it work. On January 29, 1918, the purchasers wrote a letter to the company, containing the following: “Now what we want to know, will you take this machine and give us one that will work?” This proposition was declined by the company in a letter dated February 16,. 1918.
It is the rule in eases of this kind that where the contract contains a warranty and provides for a remedy in case of a breach, the remedy is exclusive. J. I. Case Threshing Machine Co. v. Harp, 113 S. W. 488; Crouch
Judgment reversed and cause remanded for a new trial consistent with this opinion.