Raynor v. Bryant, 43 Kan. 492

Raynor v. Bryant

43 Kan. 492 | Kan. | 1890

The opinion of the court was delivered by

Valentine, J.:

We think the evidence introduced on the trial of this case was sufficient to authorize the verdict rendered by the jury, and if so, then the only question remaining is, whether there was any such error committed by the trial court during the trial as will require a reversal of the judgment of such court. It would seem to us that the principal dispute between the parties arises from' a difference between them as to what is the true and proper construction of the warranty given by the Leader sewing machine company with each sewing machine to the defendant. The plaintiffs seem to construe such warranty, not as a warranty of the sewing machine as a whole, but only as a warranty of its separate parts, and not that each separate part should remain reasonably good with proper use for a period of five years or for any other period of time, but simply that if it should be defective in workmanship or material at the time when the machine was sold, then that the purchaser should have the privilege of returning it to the company to have the same replaced by another, and should not have any other remedy. On the other side, the defendant claims that the warranty is a warranty of the machine as a whole and as to each separate part, with the exception of the shuttles and needles, and this for the period of five years in case the machine should be reasonably and properly used only for family purposes; with the privilege to the purchaser of returning to the company any particular part of the machine which might be found to be defective in either workmanship or material, and of having *496the same replaced by another, free of cost. The case was tried in the court below both by the defendant and by the court upon the defendant’s theory as to the true and proper construction of the warranty, and hence the plaintiffs claim that it was erroneously tried.

Evidence was introduced on the trial tending to prove that the defendant purchased forty sewing machines from the Leader sewing machine company, and gave six promissory notes therefor, all of which have been paid except the one sued on; that the transactions had between the sewing machine company and the defendant were all carried on and conducted on the part of the company through the agency of Phil. Jacobs; that the machines were not good machines; that many parts of them were defective both in workmanship and material; that the defendant returned some of the parts to the sewing machine company for the purpose of having them made better or others returned in their places; that the company repaired or replaced these parts, but charged the cost thereof to the defendant, which he paid; that Jacobs gave the defendant the privilege of making good and repairing all defective parts which might be found in the sewing machines, and stated that the company would pay him therefor, and that it would save the company the expense of transportation to and from the company; that the defendant did repair and cause to be repaired many of such defective parts at considerable cost to him; that he still has fifteen of such sewing machines on hand, which are almost worthless and which he cannot sell; that the sewing machine company is insolvent, has made an assignment, is not carrying on any further business, and that no such machines as those purchased by the defendant, nor any of the parts thereof, are now being made or supplied by the company.

We think the warranty given with each sewing machine was correctly construed-by the court below, and if so, then there is but little room for the plaintiffs to claim that any material error was committed by such court. And construing the warranty as the court below construed it, it makes but *497very little difference whether Phil. Jacobs was a general or only a special agent for the Leader sewing machine company, though from the facts proved it is fair to hold, as between the sewing machine company and the defendant, that he might be considered as a general agent for the company, and therefore that his agreement concerning the repairs of the various parts of the sewing machines would bind the company. (Babcock v. Deford, 14 Kas. 408; Sewing Machine Co. v. Rheinschild, 25 id. 534; Banks v. Everest, 35 id. 687; Insurance Co. v. Barnes, 41 id. 161.) The rights of the parties, however, without such agreement, would be about the same as with, and therefore such agreement is of but little importance. As a general warranty was given with every sewing machine, and as all the warranties were and are alike, exceptas to numbers, it makes no difference and constitutes no error that the trial court permitted the defendant to prove the various defects in the several machines without first proving the particular number of each machine.

There are other claims of error, but we do not think that they require any comment.

The judgment of the court below will be affirmed.

All the Justices concurring.