H. A. Pitts' Sons Manufacturing Company v. Lewis

• Decision Date: 01 July 1883
• Citation: 1 P. 812,30 Kan. 541
• Parties: H. A. PITTS' SONS MANUFACTURING COMPANY v. ROBERT A. LEWIS, et al
• Court: Kansas Supreme Court

1 P. 812

30 Kan. 541

H. A. PITTS' SONS MANUFACTURING COMPANY v. ROBERT A. LEWIS, et al

Supreme Court of Kansas

July 1, 1883

Error from Pawnee District Court.

ACTION brought by H. A. Pitts' Sons Mfg. Co. against Lewis and wife, upon two promissory notes, and to foreclose a real-estate mortgage given by the defendants to secure the payment thereof. Trial at the September Term, 1882, of the district court, before A. B. J., judge pro tem., and a jury. Verdict for defendants, and judgment for $ 103.66 costs against the plaintiff, and for the cancellation of the notes and mortgage. The Company brings the case here. The opinion states the facts.

Judgment reversed and case remanded.

Van Winkle & Vernon, and C. N. Sterry, for plaintiff in error.

W. M Matheny, and P. C. Hughes, for defendants in error.

BREWER J. All the Justices concurring.

OPINION

BREWER, J.:

The facts in this case are as follows: In July, 1881, plaintiff in error, plaintiff below, sold to Robert A. Lewis, one of the defendants in error, a steam threshing machine for the sum of $ 1,655. For the payment thereof it took two notes signed by the defendant Lewis, and secured by chattel mortgage on the property sold, and also a real-estate mortgage executed by both defendants. Upon the maturity of the first note, it not being paid, plaintiff took possession under its chattel mortgage of the personal property mortgaged and sold the same at public auction, after due notice, for the sum of $ 500, which was credited on such note. Thereafter it brought this action to foreclose the real-estate mortgage for the remainder due on the two notes. The defendants answered, admitting the execution of the notes and mortgage alleging that the consideration of the notes was this threshing machine, that upon trial the machine proved to be utterly worthless and of no value whatever, and therefore that the consideration of the notes had wholly failed. The case went to trial before a jury, and resulted in a verdict and judgment for defendants. Plaintiff alleges error.

While a variety of questions is suggested and discussed by counsel we think it unnecessary to consider more than two. The first is this: The answer, as heretofore stated, set up as a defense that the machine was worthless, of no value whatever, and therefore that the consideration of the notes had failed. In other words, the plea was a total failure of the consideration. It did not allege any rescission of the contract, or return, or offer to return, the property; in short, made no pretense of a rescission of the contract, but rested alone upon its claim of a total failure of consideration. Upon the trial it appeared that the property sold consisted of a steam engine and threshing machine. The price of the steam engine was $ 1,150; of the machine, the remainder of the notes. And as the purchaser himself admits, the steam engine was worth $ 1,150, all he contracted to pay for it, the defect and failure being alone in the threshing machine proper. Of course this admission of defendant of the value of the steam engine destroyed the defense as a full defense. There could be no total failure of consideration when the most valuable portion of the property purchased was admitted to be of the value stipulated. Defendants therefore on the trial sought to prove a rescission of the contract; that the threshing machine proper could not do the work represented, was in fact a failure, and that therefore the defendants elected to rescind the contract, tendered the steam engine and the machine back to plaintiff, and demanded a cancellation of their notes. Plaintiff objected to this testimony, on the ground that no such defense was set up in...