93 P. 579 | Kan. | 1908
On August 26, 1905, the Salina Implement and Seed Company, through its agent, S. A. Dixon, sold a corn-harvester to W. E. Haley, the price being $125 if paid in cash, or $130 if notes promising payment in the future were given. Haley took the machine to his farm and undertook to operate it, and after using it more or less until September 4, 1905, he decided that it did not serve the purpose for which it was purchased nor come up to the conditions of the warranty under which it was sold. The company, claiming that there was an unconditional sale, brought this action to recover the price of the machine, contending also that Haley kept the machine an unreasonable time, much longer than was necessary for a test of its working qualities, and that, when Haley complained of the machine, Dixon said to him that if he was not satisfied he should return the machine, but that he had then refused to do so or to rescind the contract, and, by continuing thereafter to use the machine, he waived any right he might have had to rescind the sale. There was proof, and plenty of it, tending to show that the sale was made under a warranty that the machine would do good work, and that Haley should take and test it by use until he was satisfied that it met the requirements of the warranty, and, if it did not work to his satisfaction, he could return it to the plaintiff. There was a conflict in the testimony as to the warranty, and also as tc whether Dixon had requested Haley to return the machine if he was not satisfied with it; but the findings of the jury were that the machine was warranted to do good work but did not, that Haley was to run the machine until he was satisfied that it would work well before accepting it, and that if it did not work to his satisfaction he had the privilege of returning it to the company.
It is contended that the testimony of disinterested
The principal contention is that the test of the machine was not honestly made, and that Haley kept and used it too long after discovering that it was unsatisfactory to justify a rescission of the contract and the return of the machine. It was the duty of Haley to give the machine a fair test, availing himself of such suggestions and assistance as the seller could render, and if it proved defective and unsatisfactory he was then entitled to rescind the contract and return the machine, providing it was done within a reasonable time. In speaking of the return of the machine in case it was found that the sale was made upon an agreement that if the machine did not prove satisfactory to Haley it might be returned the court properly charged the jury as follows:
“If in his honest judgment it'did not so operate he would have a right to return the machine and cancel the contract, but under such circumstances it would be his duty to return the machine with reasonable promptness, after having used the machine for such a reasonable time as would be required to give the machine a fair test, and if he failed to return the machine within a reasonable time after having discovered the defects he would be deemed to have waived them, unless his delay in returning the machine and rescinding the contract was occasioned by the promise of the plaintiff to fix the machine so that it would work.’ In a transaction of this kind both parties are required to act in good faith, and neither can be permitted to take advantage of his own wrong.”
What is a reasonable time within which to return property so sold and accomplish a rescission is a question of fact for the jury, where there is conflicting testimony. (Cookingham v. Dusa, 41 Kan. 229, 21 Pac. 95.) Here, as we have seen, the trial of the machine
There is nothing substantial in the objections to the rulings on the admission of evidence or to the instructions given by the court. The judgment is affirmed.