Gaar, Scott & Co. v. Hodges

• Decision Date: 02 February 1906
• Citation: 90 S.W. 580
• Parties: GAAR, SCOTT & CO. v. HODGES.
• Court: Kentucky Court of Appeals

90 S.W. 580

GAAR, SCOTT & CO. v. HODGES.

Court of Appeals of Kentucky.

February 2, 1906

Appeal from Circuit Court, Barren County.

"Not to be officially reported."

Action by Gaar, Scott & Co. against Ed Hodges. From a judgment for defendant, plaintiff appeals. Reversed.

J Lewis Williams, for appellant.

Baird &amp Richardson, for appellee.

O'REAR J.

Appellant sold to appellee a separator and stacker, parts of a threshing outfit, for $573 in the aggregate. All of the purchase price was deferred, evidenced by notes payable in the future. The warranty of the machinery sold is as follows "Each article of machinery (except belting) furnished on this order is warranted to be made of good materials, well constructed, and, with proper use and management, to do as good work as any other of the same size and rated capacity made for the same purpose." Provision is made for giving notice of the failure of the machinery to do the work. The warranty continues: "If any part of the machinery cannot be made to fill the warranty, that part which fails shall be immediately returned by the undersigned to the place where it was received, and written notice of such return given to the company at its home office, with the option in the company either to furnish another machine or part in place of the machine or parts so returned or return the money and notes which shall have been given for the same." The machinery failed to give satisfaction. Notice was given as required by the contract. Appellant sent an experienced workman to remedy the defect, but after he left it was found that the machinery still failed to give satisfaction. Appellee claims to have complained to appellant by letters. He does not claim that appellant ever offered to do anything else towards repairing the machinery or replacing it. On the contrary, he says that they did not answer his letter at all. He continued to use the machinery until the close of that season. He threshed some 60 odd crops of wheat, according to his own statement from 8,000 to 10,000 bushels of grain and seed. It appears from his testimony that he probably made about $200 clear money in the operation of the machinery for that season. Still it did not do the work as he expected it to do, and as it seems it ought to have done if it had been as warranted. Appellee after the close of the season offered to return the machinery, but appellant declined to accept it. It sued upon the purchase-money notes. Appellee defended, setting up the breach of the warranty, claiming that the machines were worthless. In addition he claims that it was known to appellant that appellee had bought the machines for the purpose of operating a thresher in his neighborhood; that he had considerable expense, contracted to thresh a number of crops of wheat and other grain in that neighborhood during that section, and had incurred expenses for hands, material etc., by reason of which, and the...