Gale Sulky Harrow Mfg. Co. v. Moore

• Decision Date: 09 May 1891
• Citation: Gale Sulky Harrow Mfg. Co. v. Moore, 46 Kan. 324, 26 P. 703 (Kan. 1891)
• Parties: GALE SULKY HARROW MANUF’G CO. v. MOORE.
• Court: Kansas Supreme Court

26 P. 703

46 Kan. 324

GALE SULKY HARROW MANUF’G CO. v. MOORE.

Supreme Court of Kansas

May 9, 1891

Syllabus

1. To rescind a contract for the purchase of a chattel the property purchased should be returned or offered to be returned within a reasonable time, unless it is of no value to either party and it is held that the testimony in the present case is insufficient to sustain a finding of rescission.

2. Where a seeder is purchased on a warranty and damage is claimed by reason of a breach of the conditions of the warranty, in that it fails to cover the seed that is sown which results in a loss not only of the seed, but also of the use of the land on which it is sown, the purchaser will be entitled to recover for the loss that occurs while he makes a reasonable test of the fitness of the seeder to perform the work for which he purchased it; but after he ascertains that it will not do the work, and is wasting the seed, he should desist from its further use, and cannot enhance his damages by sowing crop after crop with the seeder, when he knows that the seed sown is wasted, and the use of the land on which it is sown will be lost.

3. The testimony examined, and found to be insufficient to sustain the findings of the jury.

Error from district court, Harper county; J. T. HERRICK, Judge.

Shepard, Grove & Shepard, for plaintiff in error.

Sam S. Sisson, for defendant in error.

OPINION

JOHNSTON, J.

This action was brought upon a promissory note given by the defendant to the plaintiff for the purchase price of a Gale sulky harrow and seeder. The note was executed June 8, 1885 for $65, and was payable September 1, 1886. The execution of the note was admitted, but the defendant claimed that the implement was sold with a warranty that it was well adapted to the work of seeding ground; that the material and workmanship of the same was first-class in every particular; and that it would do the work in a satisfactory and farmer-like manner. He alleged that the representations were untrue; that the implement was inferior in quality, unfit for the purposes for which it was purchased, and wholly worthless. He alleges that he gave plaintiff due notice of the failure of the machine, and that it is now on his farm subject solely and exclusively to the order of the plaintiff. There is a further allegation that by reason of the breach of the warranty the defendant suffered damages to the extent of $405. The trial of the case resulted in a verdict in favor of the defendant, and the plaintiff complains here that the evidence is insufficient to sustain the verdict or the special findings that were made; that the findings are indefinite and inconsistent, and that the instructions were erroneous. The record shows that Moore purchased the implement in June, 1885; that he seeded 40 acres in wheat with it in the fall of 1885, 16 acres of oats in the spring of 1886, and about 65 acres of wheat in the fall of 1886. Plaintiff claims that the evidence of defendant was wholly insufficient to sustain the claim of rescission, and, therefore, that its demurrer to the evidence should have been sustained. The jury found that Moore rescinded his contract, but not until after the note became due, and the payment of the same was demanded. If the defendant had relied solely on the single defense of rescission we would be inclined to agree with the contention of plaintiff that the defense was insufficient, and that the findings warranted a judgment in its favor. If Moore desired to rescind it was his duty to place plaintiff in statu quo as nearly as possible, and therefore he should have returned or offered to return the implement, unless it was wholly worthless to both parties. From the testimony it cannot be said that it was valueless; and neither can it be said that there was a rescission. "In order, however, that the purchaser be entitled to rescind the contract, he must return the property, or offer to return it, within a reasonable time. He cannot retain and use the property, and at the same time say he repudiates and rescinds the contract of the purchase." Cookingham v. Dusa, 41 Kan. 229, 21 P. 95. See, also, Aultman v. Mickey, 41 Kan. 348, 21 P. 254; Weybrick v. Harris, 31 Kan. 92, 1 P. 271. ...