79 P. 661 | Kan. | 1905
The opinion of the court was delivered by
The Kinnard Press Company sued Wyatt Stanley upon a note for $1267. Stanley defended upon the ground that a gasoline-engine for which the note was given had failed to meet certain express warranties, and that he had rescinded the contract of purchase. A trial resulted in a judgment for the defendant, and the plaintiff prosecutes error. A number of objections made to the consideration of the case on its merits have been considered and found insufficient.
The contract also contained this provision: “Sev
The contract contained a provision that “continued use of the engine for five days without complaint being made direct to the Kinnard Press Company at its factory in Minneapolis, by registered letter, shall be sufficient evidence that the warranty is fulfilled.” Use of the engine was begun July 3,1901. No notice of dissatisfaction with its operation was given until July 9. It is claimed that these facts precluded a recovery by defendant. It does not appear, however, that the engine was used continuously from July 3 to July 9, or that it was used for more than three days during that time. It was the continued use of the engine for five days without complaint that was to conclude the purchaser — not its retention for five days from the time it was first used.
The note was executed July 13, 1901, after the trial of the engine, being made payable October 1. Plaintiff in error seeks to give to this transaction the effect of a final acceptance of the engine. It is not capable of that interpretation, however. The original contract of purchase called for a note to be given to be due October 1, and provided that if such a note were not given the contract itself should stand as a written ob
Complaint is made of the admission of testimony regarding a conversation between an agent of the ■ plaintiff and the defendant at the time the note was. given. The record, however, does not disclose that. any timely objection was made to its reception.
The judgment is affirmed.