207 P. 364 | Ariz. | 1922
This is an action by Fen S. Hildreth against the Pratt-Gilbert Company, a corporation, in which he seeks to recover the purchase price of a Monarch tractor sold him by the latter. From a judgment for plaintiff in the full amount asked for, $1,856.70, and an order denying its motion for a new trial, Pratt-Gilbert Company appeals.
It appears from the complaint that in the latter part of June, 1917, appellee, Hildreth, ordered from appellant a Monarch tractor which arrived in Prescott, Arizona, the latter part of July, 1917, and a few days thereafter was driven to appellee’s ranch in Yavapai county; that it was purchased for the express purpose of plowing, disking and preparing the land on appellee’s ranch for planting to crops, a fact then well known to appellant, who at the time of making the sale to appellee warranted that the said tractor was fully adapted to the particular purpose for which appellee desired it and that it would “develop eighteen (18) brake horse-power at the drawbar and thirty (30) horse-power at the crank shaft, and that said tractor would handle and pull four fourteen-inch plows in the soil on plaintiff’s said ranch, the condition of which said soil and the position and location of said ranch were to defendant company well known”; that appellee, relying upon said warranty, ordered and received said tractor and paid therefor the sum of $1,650 and for freight thereon from the factory at Watertown, Wisconsin, to Prescott, Arizona, the further sum of $206.70; that appellee was unable to use the tractor for plowing at the time he purchased it because of the hardness of the soil on his ranch due to the drought, and that he kept said
The answer admits the sale and delivery of the tractor and the payment of the purchase price, but denies the warranties claimed, and alleges that the sale was made upon an agreement that if, after a three-days’ test by appellee, the tractor did.not work well, he would give appellant written notice thereof stating wherein it failed, whereupon the latter would send a competent man to put it in shape, and, if this could not be done appellee should then immediately return the tractor to appellant; that the failure to give notice that the tractor did 'not work well after a trial as above stated or its use by appellee after three days from the time it was delivered to him without giving notice as to wherein it failed should operate as an acceptance thereof and a fulfillment of all warranties pertaining to the sale; that the tractor was delivered on July 29, 1917, a trial thereof had in behalf of appellee by his agent, Bob Southers, who accepted it, whereupon appellee on August 8, 1917, paid the purchase price; that at no time previous to April 20, 1918, did appellee notify appellant that said trac
It appeared from the evidence that about a week after the tractor had been delivered and, according to appellant, tested, and accepted by appellee through his representative, a request for the payment of the purchase price was made, but appellee, declining to accept the guaranty of the factory people whom he did not know, refused payment unless appellant, a local company, would guarantee that the tractor would do the work at his ranch. Consequently the following letter was delivered to appellee, whereupon he gave appellant his check for $1,650, having paid the freight when the tractor was unloaded in Prescott :
“Pratt-Gilbert Company.
“Phoenix, Arizona, 8 — 7—17.
“Mr. Fen S. Hildreth,
‘ ‘ Fleming Bldg.,
“Phoenix, Ariz.
“Dear Sir: As per your verbal conversation with our Mr. Doe this afternoon regarding the work the tractor purchased from us recently will do, we hereby guarantee said tractor to handle four fourteen-inch plows, and will develop 18 brake HP. at the drawbar, and 30 brake HP. at the crank shaft.
“Hoping that this will meet with your approval and thanking you for your very many courtesies, we beg to remain.
“Yours very truly,
“PRATT-GILBERT CO.,
“CYRIL S. GILBERT.”
Attached to this letter was the guaranty of the Monarch Tractor Company, evidently in the form given with all its machines, which contained the warranties alleged in the answer and signed by appellant as well as by the manufacturer. These guaranties were delivered to appellee and the purchase price
Appellee alleged, however, and the court so found, that appellant through its agent gave him until the fall or spring plowing to make the test, but the sufficiency of the evidence to support this finding is challenged, and in support of its position appellant cites the following excerpt from the testimony of appellee, which is all the record contains on the subject:
“Q. State what that was, and when? A. In my talk with Mr. Doe in the St. Michael Hotel, in July, 1917, I told Mr. Doe I didn’t want the tractor right then. He says, ‘You give me the order for the tractor, beeáuse you will save some money by it, and then you can use it this fall or the spring when yon are going to use it, and yon will save this much money. ’
“Q. Did he say how much? A. I think it was about $170 he said I would save.”
The purport of Doe’s statement is that by purchasing the tractor at that time appellee would save money and then have it for use in the fall or spring, or whenever he intended to use it. The word “use” is not synonymous with the words “test” or “try,” and there is nothing in the context indicating that it was intended to convey that idea. But it is only by giving it this meaning that the finding can be sustained, and without passing upon the objection to the admissibility of this testimony, urged upon the ground that it was oral and that, when an agreement “made in parol is afterwards reduced to writing, the writing is presumed to contain the contract in its entirety” (Lanham v. Louisville & Nashville R. R. Co., 120 Ky. 351, 86 S. W. 681), it sufficiently appears that the evidence does not justify the finding.
No time for determining whether the tractor would fulfill the warranties having been agreed on by the parties themselves, it was incumbent upon appellee to ascertain this fact within a reasonable time, and by this is meant a “fair and sufficient time and opportunity, all the circumstances considered, including his own, to test and examine the property and ascertain whether it corresponds with the warranty or not. ” Boothby v. Scales, 27 Wis. 626; Cookingham v. Dusa, 41 Kan. 229, 21 Pac. 95.
“That immediately thereafter [August 7, 1917] said plaintiff placed said tractor in operation in work for which it was purchased and which it was intended to do as above set forth, and plaintiff alleges that said tractor never at any time fulfilled the conditions of the warranty set forth in that the said tractor, the same being then and there properly and carefully handled, did not and could not pull four fourteen-inch plows as aforesaid.”
It is immaterial whether appellee tested the machine under the conditions called for by the agree
“It is inconsistent with the nature of the right or privilege thus given the purchaser, that there should be any unnecessary delay in the exercise of it. The 'seller in the meantime is deprived of the use of his property and perhaps of the opportunity for resale. He is liable to refund the purchase money with interest from the time of sale, or, if it has not been paid, he loses the interest on it. These considerations are sufficient to require promptness and forbid needless delay on the part of the purchaser. If it appears that he had ample time and opportunity to test and examine the article, and ascertain its quality or capacity with reference to the warranty, and might have conveniently done so, but neglected to do it, such neglect should be regarded as a waiver of the right to rescind, and as an election on his part to retain the property, subject to such claim for damage as he might subsequently establish.”
See Cookingham v. Dusa, above; Gale Sulky Harrow Mfg. Co. v. Moore, 46 Kan. 324, 26 Pac. 703; Best Mfg. Co. v. Hutton, 49 Mont. 78, 141 Pac. 653; Southern Gas & Gasoline Engine Co. v. Adams & Peters (Tex. Civ. App.), 169 S. W. 1143; Northern Electrical Mfg. Co. v. H. M. Benjamin Coal Co., 116 Wis. 130, 92 N. W. 553; 2 Black on Rescission and Cancellation, par. 542.
The evidence discloses that the tractor was used many times by appellee’s employees before the letter of rescission was written, though it is claimed that each instance was merely an effort to test it; but,
The judgment of the lower court is reversed and the case remanded, with directions to dismiss the complaint.