Aultman

• Decision Date: 05 April 1889
• Citation: 41 Kan. 348,21 P. 254
• Court: Kansas Supreme Court
• Parties: AULTMAN, MILLER & COMPANY v. L. W. MICKEY

21 P. 254

41 Kan. 348

AULTMAN, MILLER & COMPANY v. L. W. MICKEY

Supreme Court of Kansas

April 5, 1889

Error from Rooks District Court.

ACTION brought by Aultman, Miller & Co., against L. W. Mickey on a promissory note for $ 75. In 1884 the defendant purchased of the plaintiffs a Buckeye low-down self-binder agreeing to pay therefor $ 225, and executed three notes of $ 75 each, payable in January, 1885, 1886, and 1887 respectively. The first note was paid when due. This suit was brought on the second note after refusal of payment. Judgment in justice's court in favor of the defendant; plaintiffs appealed. Trial in the district court at the December term 1886, and verdict and judgment for the defendant. Of this judgment plaintiffs complain.

Judgment reversed and remanded.

C. W. Smith, for plaintiffs in error.

M. C. Reville, for defendant in error.

CLOGSTON C. All the Justices concurring.

OPINION

CLOGSTON, C.:

This was an action brought upon a note given as a part payment of the purchase-price of a harvester sold by the plaintiffs to the defendant. The record shows that it was sold on a verbal warranty, by the terms of which it was warranted to be of good material and to do good work. No provision was made for notice in case of defect, or for its return provided it failed to give satisfaction. In the absence of such requirements it was the duty of the purchaser to give the harvester a fair and reasonable trial; and then, if not satisfied, to return it and rescind the contract. This must be done within a reasonable time. (Weybrich v. Harris, 31 Kan. 92; Cookingham v. Dusa, ante, p. 229.) The record shows that he was not satisfied with the machine, and in fact that the machine was largely defective; but notwithstanding this, defendant retained and used it during the summer of 1884 and part of the season of 1885 -- the first season cutting some ninety or one hundred acres, and the second season about fifty acres of grain; and where these facts are shown it seems to us that the claim made by the defendant that the machine was worthless for the purpose for which it was designed, comes with bad grace at this late date. The law as we understand it is, that where a machine of this kind is retained by the purchaser, he is bound to account for its value, if it has any; and not only for its value for the purpose for which it was designed, constructed, or sold, but for its value either to the purchaser or seller for any purpose. (Warder v. Fisher, 48 Wis. 338.)

Plaintiffs offered to show, and the court refused to receive the evidence, that this machine contained certain iron, steel and wood, and that this iron, steel and wood...