Brandtjen & Kluge, Inc. v. Lucas

• Court: Kansas Supreme Court
• Writing for the Court: THIELE, Justice.
• Citation: Brandtjen & Kluge, Inc. v. Lucas, 153 Kan. 138, 109 P.2d 197 (Kan. 1941)
• Decision Date: 25 January 1941
• Docket Number: 35020.
• Parties: BRANDTJEN & KLUGE, Inc., v. LUCAS.

109 P.2d 197

153 Kan. 138

BRANDTJEN & KLUGE, Inc., v. LUCAS.

No. 35020.

Supreme Court of Kansas

January 25, 1941

Syllabus by the Court.

A buyer of machinery desiring to rescind for failure of warranty must return, or offer to return, the property within a reasonable time, and waives his right to rescind by retaining possession and using the machinery with knowledge of the defect.

There being evidence that an automatic printing press, warranted to have accurate register, was kept for about 16 months by the buyer, who tried repeatedly but unsuccessfully to obtain satisfactory results, because of the seller's representations that it could and would be made to perform under the warranty, the questions whether the buyer retained possession an unreasonable time, and waited too long to rescind, were for the jury.

In a replevin action for property mortgaged to secure a note where plaintiff did not challenge the sufficiency of an unverified answer and cross-petition, but pleaded over by filing a reply denying the new matter and renewing the prayer of its petition, plaintiff waived lack of verification, even if required by the statute relating to verification in actions founded on instruments for the unconditional payment of money. Gen. St.1935, 60-729.

In the seller's action of replevin against the buyer, who sought to rescind, where the proof was ample to show an offer to return the property, which was in the seller's possession when the answer and cross-petition were filed, the question of sufficiency of the buyer's pleadings because of the absence of an allegation of an offer to return could not be first raised on appeal.

The statute authorizing judgment in favor of a defendant in replevin claiming a right to the return of the property does not necessarily mean that he must plead his claimed right by answer rather than cross-petition. Gen.St.1935, 60-1010.

The name applied to a pleading, whether called an answer or cross-petition, is not decisive in determining the sufficiency thereof to plead a claim or defense.

A judgment for rescission in favor of the defendant buyer in the seller's replevin action was sufficiently supported by the pleadings, which were not objectionable on the ground that it was incumbent on the buyer to plead as a defense in his answer, as distinguished from his cross-petition, his right to recover for property turned in as part payment for the property replevied, and for other property taken under replevin, where it appeared that such objection was not made at the trial, and that the parties, court, and jury understood the issue. Gen. St.1935, 60-711, 60-1010.

Evidence that an automatic printing press would not register accurately was sufficient to show breach of warranty, since the buyer was not bound to prove any particular defect in the press, or the cause of its failure to register accurately.

Refusal to strike certain testimony, even if irrelevant, was not ground for reversal, where prejudice did not appear.

1. The general rule with respect to personal property is that where a purchaser of a machine desires to rescind the contract by reason of a failure of warranty, he must, within a reasonable time and as a condition precedent to rescission, return or offer to return the machine; and where with knowledge of the failure he retains possession and uses the machine, he waives his right to rescind.

2. Where the evidence discloses facts by which it is shown or from which it may be inferred the machine was kept and tried repeatedly because of the seller's representations that it could and would be made to perform under the warranty whether, under all the circumstances, the purchaser retained possession an unreasonable time and whether he waited too long to rescind were questions of fact for the jury.

3. Where in an action in which an answer should ordinarily be verified as provided in the latter sentence of G.S.1935 60-729, the defendant files an unverified answer and cross-petition, and the plaintiff does not challenge the sufficiency thereof either by demurrer, motion or otherwise but pleads over by filing a reply putting in issue the new matter alleged and renewing the prayer of his petition, the plaintiff waives the lack of verification.

4. The record in an action in replevin examined, and held:

(1) The pleadings in the action are sufficient to support a judgment in favor of the defendant on his counter claim.

(2) The evidence was sufficient to show a breach of the warranty of a contract of sale.

(3) There was no prejudicial error in the trial court's rulings on the admission of evidence.

(4) There was no error in the trial court's instructions to the jury.

Appeal from District Court, Wyandotte County, Division No. 3; Harvey J. Emerson, Judge.

Replevin action by Brandtjen & Kluge, Incorporated, against J. N Lucas, doing business as Lucas Brothers Company, for certain mortgaged printing presses and equipment, wherein defendant filed a cross-petition. From a judgment for defendant on his cross-petition, plaintiff appeals.

Patrick W. Croker, George H. West, and Tudor M. Nellor, all of Kansas City, and Robert M. Coleman and W. Raleigh Gough, both of Kansas City, Mo., for appellant.

Alan W. Farley, of Kansas City, for appellee.

THIELE Justice.

This was an action in replevin to recover possession of certain mortgaged printing presses and equipment. The defendant recovered on a cross-petition and the plaintiff appeals.

Under date of October 5, 1937, defendant Lucas purchased from the plaintiff company a Kluge automatic printing press and certain equipment at a total price of $2,438.60 to be paid by plaintiff's taking in a used press at $140, the balance to be paid in sixty monthly installments evidenced by a note. The terms of the contract need not be noticed particularly further than the automatic press was guaranteed to have accurate register--that is, that the automatic press and feed devices would so deposit the paper or stock to be printed upon that a sheet would take the same place in the press that if it were repeatedly reinserted by the automatic feeder the impression would be exactly superimposed upon the impression already made. The note above mentioned was secured by a chattel mortgage covering the automatic press and equipment sold as well as another press belonging to the defendant. Between November 30, 1937 and March 10, 1939, defendant paid plaintiff the sum of $533.43 on the above note.

The petition filed June 5, 1939 alleged the execution and delivery of the note and chattel mortgage and default by defendant and that plaintiff was entitled to the immediate possession of the mortgaged property and the prayer was for such possession, or failing possession for the value alleged to be $1,765.17. A proper affidavit and bond was given and plaintiff recovered possession. No redelivery bond was given.

Defendant filed an answer admitting execution of the note and chattel mortgage and a cross-petition in which he may be said to have sought recovery of the amount alleged to have been paid by him, $575.80, also the value of the press turned in by him as part of the purchase price at $140, and the value of the second press covered by the chattel mortgage and taken under replevin, the value being alleged to be $150. Defendant sought also to recover damages sustained by reason of the failure of warranties on the automatic press.

Plaintiff filed a motion to require defendant to elect whether he sought recovery of moneys on the theory of rescission or damages on the theory of breach of warranty of the contract and this motion being sustained, thereafter defendant filed an amended answer and cross-petition which omitted all reference to damages. This pleading was not attacked in any manner. Plaintiff filed its reply denying the new matter and praying for judgment according to its petition and that defendant take nothing by his cross-petition.

At the trial, and after defendant had made his opening statement plaintiff moved for judgment because defendant's answer and cross-petition was not verified and because facts sufficient to constitute a defense or a valid counterclaim were not stated. This motion was denied and the trial proceeded. At the conclusion of defendant's evidence, plaintiff moved for a directed verdict, which motion was denied. At the close of its evidence in rebuttal, plaintiff made another similar motion, which was denied. Thereafter the cause was submitted to a jury which found in favor of the defendant on his counterclaim for the sum of $533.43, and in addition he was entitled to have restored to him the press taken in at the value of $140, and the mortgaged press taken in replevin the value being fixed at $150, or in lieu the said amounts. The jury also answered special questions. By the answers the jury found there was a breach of warranty of the press, the defect being unknown; that the press did not register accurately, the exact cause being unknown, the testimony indicated a defective machine; that defendant first learned of the defect on or before December 20, 1937, and offered to return the press. In answer to a question as to when and how the defendant offered to return the press, the jury answered: "The letter of April 4, 1939, for removal of machine, agreeing the contents therein of a letter dated Jan. 26, 1938. Letter not admitted but service rendered on press. They acknowledge the letter of Jan. 26, 1938, for removal of the press by sending a service man March 2, 1938, without any further request, for a service man previous to that time and also by letter of April 4, 1939, asking removal of machine and return of money paid on contract for purchase of press." And it further answered that such offer to return was made as soon as was...