197 Ky. 348 | Ky. Ct. App. | 1922
Opinion op the Court by
Affirming.
Appellant company sold to Walters Bros., on March 15, 1918, a farm tractor with some other farming machinery at the agreed price of $1,425.00, all of which was paid in cash except $700.00, evidenced by two notes falling due in the fall of that year. The tractor proved very unsatisfactory according to the evidence of appellees and would not perform the work for which it was intended; and instead of being a help on the farm as a time saver, proved to be of little, if any, beuefit. The tractor was delivered to Walters Brothers on their farm in Larue county about the first of April, and the local agent of appellant together with the state agent went out to the farm to see the tractor started and to give it a trial. It had a leak in the tank and radiator, besides other defects. It would operate, however, to some extent on the day it was delivered to the farm but was soon out of order, and appellees called upon the local agents for repairs of the tractor, and at the suggestion of the local agents the appellant sent one of its general repair agents to the farm for the purpose of examining and repairing the tractor. He undertook to put it in condition and worked on it some time but left it in an unsatisfactory condition and it would do practically no work. Appellees again applied to the local agents for adjustment and repair of the machine, with the result that another general repair agent was sent by the company to the Walters farm for
The company defends the action upon several grounds, chief among them being (1) the failure of appellees to give to the company a written notice at the end of the six-day trial of the machine that it was unsatisfactory, if indeed it was; (2) the failure of appellees to return the machinery within a reasonable time after its delivery to them and after appellees had found out that the tractor would not perform the work for which it was intended.
According to the evidence of appellees the tractor did not do six days ’ work in the nine months which they kept it, and' further that the agents and representatives of the company were constantly promising to make repairs of the machine and to put it in good condition and frequently came to work on it, and owing to a leak in one of the tanks the oil worked out and killed the ignition. The engine had no power and would not pull one-half as
On the other hand appellant company contends that every time they sent their expert repairman to work on the tractor that he put it in good condition, and this the company insists is fully established hy a satisfaction slip signed by Walter Brothers, or one of 'them, showing that the workman had been to their place ¡and had put the machine in satisfactory condition. In answer to this appellees say that thy declined to .sign such a statement, but were assured by the agents each time that it only meant and was only intended to ¡show that the workman had been to his premises and had worked on the tractor, and was not intended to and would not affect the contract between the parties. With this understanding Walters Brothers signed this satisfaction slip. Appellees did everything they could from the time the machine was delivered until it was returned to make it perform the functions of a farm tractor, as set forth in the contract, but were unable to do so even with the expert assistance of appellant company. Appellees paid the full price for the tractor and continued to urge appellant company and its agents to put the machine in condition, and when appellees finally discovered the company could not make the tractor perform the duties for which it was purchased and had received information from the agents of the company that said agents would do no more work on the tractor, they immediately returned it to the local agents from vrhom they had obtained it.
The case under consideration comes, as we think, clearly within the rule which allows a rescission of a contract for non-performance thereof by the seller, and the further rule equally as well established that where a seller delivers machinery to the purchaser which machinery is defective and insufficient for the purposes for which it was sold as expressed in the contract and the agents of the seller when the machine is 'delivered, attempts to make it operate and then and there discovers that the machine is not of the kind and character which the seller agreed to deliver to the buyer and thereafter attempts at different times to make the machine perform its functions without success, and being assured by the agents of the seller that the machine so' sold will be made to perform its functions, continues to hold the machine and to urge the agents of the seller to make such repairs as will cause the machine to function properly, and after giving
Walters Brothers did more than was required of them to give appellant company a chance to put the tractor in condition, and having done so did not refuse to but did in fact pay the machine company the full price of the tractor without complaint, except as to the defective -con- '• dition of the tractor, so the appellee company is in no position to complain. The company had all the notice required under the contract of the' defective condition of the machine and sent its general repair agents there to' make it function but utterly failed to do so. When the ■ company ceased to try to make the machine perform Wal- ■ ters Brothers conceived that patience was not a virtue iñ that instance and returned the machine. They we-re
The trial court having arrived at a proper conclusion the judgment is affirmed
Judgment affirmed.