Attala County v. Morrissey-Easton Tractor Co., Inc.
| Decision Date | 07 March 1932 |
| Docket Number | 29853 |
| Citation | 162 Miss. 768,139 So. 866 |
| Court | Mississippi Supreme Court |
| Parties | ATTALA COUNTY v. MORRISSEY-EASTON TRACTOR CO., INC |
Suggestion Of Error Overruled April 4, 1932.
APPEAL from circuit court of Attala county HON. JOHN F. ALLEN Judge.
Suit by the Morrissey-Easton Tractor Company, Incorporated, against Attala county. Judgment for plaintiff, and defendant appeals. Affirmed.
Affirmed.
Jas. T. Crawley, of Koscuisko, for appellant.
Where machinery is sold under a guaranty that it is mechanically perfect and will do certain specified work, the seller is bound to make such guaranty good, notwithstanding the acceptance of the machinery by the buyer.
Christian & Brough Co. v. Goodman & Garrett, 96 So. 692, 132 Miss. 786.
The seller having guaranteed machinery to do certain work it was bound notwithstanding the acceptance, to make good the guaranty, since the acceptance would not bind the buyer to pay the whole price if in fact the machine did not answer the guaranty and was less valuable to the buyer on that account.
Stilwell Bierce & Smith Vaile Co. v. Biloxi Canning Co., 78 Miss. 779.
Acceptance of goods sold under warranty, but which did not meet the warranty, was not a waiver of the purchaser's claim for damages for the breach.
Bowers v. Southern Automatic Music Co., 74 So. 774.
When a demurrer shall be interposed, the court shall not regard any defect or imperfection in the pleadings, except such as shall be assigned for causes of demurrer, unless something so essential to the action or defense be omitted that judgment according to law and right of the cause cannot be given.
Because the plea ended as a plea in bar instead of as a set-off, the county should not be denied the right to have a new hearing and have the actual truth presented.
J. Wesley Miller, of Kosciusko, for appellee.
The general rule is that a breach of warranty only gives rise to an action of claim for damages, and can be pleaded by way of recoupment or offset only in an action for the price.
Christian & Brough Company v. Goodman, 132 Miss. 786, 96 So. 692; J. B. Colt Co. v. Mazingo, 141 Miss. 402, 106 So. 533; Rosenbaum v. Davis & Andrews Co., 111 Miss. 278, 71. So. 388; Colt Company v. Fuller, 144 Miss. 490, 110 So. 427.
A breach of warranty is not an absolute defense except and unless the purchaser offered to return within a reasonable time that which was purchased and warranted, after discovering the defect. Not only must there be an offer to return, but, if the seller refuses to accept a return, the purchaser cannot afterwards appropriate and use the purchased article.
Colt Company v. Mazingo, 141 Miss. 402, 106 So. 533.
Where the buyer failed to rescind the contract for a breach of warranty for more than a year after purchase, the contract cannot be rescinded, and the buyer is liable for the price, with the right of set-off for the difference between the price and the actual value of the machine.
Colt Company v. Fuller, 144 Miss. 490, 110 So. 427.
In pleading a breach of warranty which is a species of fraud, it is necessary to set forth in the plea what the warranty is that was breached and then allege it was breached.
Argued orally by Jas. T. Crawley, for appellant, and by J. Wesley Miller, for appellee.
The Morrissey-Easton Tractor Company, Inc., filed this suit against Attala county, seeking to recover the balance of the purchase price of two tractors and one maintainer sold to the county for use in constructing and maintaining the public roads of the county.
The declaration charges that, by proper orders of the board of supervisors, competitive bids for each of these machines were invited by proper advertisements therefor; that, in response to such advertisements, the appellee, Morrissey-Easton Tractor Company, Inc., submitted bids for furnishing each of said machines specifying in each bid the terms of payment to be made by the county; that, at regular meetings of the board of supervisors, by orders duly entered on the minutes of said board, these bids were accepted by the county as being the lowest and best bids for said machines and that these several machines were delivered to, and accepted by, the county, and had been continuously...
To continue reading
Request your trial