Hopkinsville Motor Co. v. Massie

• Decision Date: 19 March 1929
• Citation: 15 S.W.2d 423,228 Ky. 569
• Parties: HOPKINSVILLE MOTOR CO. v. MASSIE.
• Court: Kentucky Court of Appeals

15 S.W.2d 423

228 Ky. 569

HOPKINSVILLE MOTOR CO. v. MASSIE.

Court of Appeals of Kentucky

March 19, 1929

Appeal from Circuit Court, Christian County.

Action by the Hopkinsville Motor Company against W. J. Massie, in which defendant filed a counterclaim. From the judgment plaintiff prayed an appeal and defendant prosecutes a cross-appeal. Appeal granted, and judgment reversed and remanded, with directions, and on cross-appeal judgment affirmed.

White &amp Clark, of Hopkinsville, for appellant.

H. W Linton, and L. K. Wood, both of Hopkinsville, for appellee.

CLAY J.

On February 11, 1926, the Hopkinsville Motor Company sold to W J. Massie one new model Fordson tractor at the price of $570. Of this sum $225 was paid by an old tractor taken in exchange. $100 was to be paid in cash by March 15, 1926, and the balance of $245 was represented by a note payable September 1, 1926, with 6 per cent. interest from date. The contract of sale contained the following provisions: "It is agreed that no warranty, either express or implied, is made by you under this order or otherwise, covering said car or tractor. The above comprises the entire agreement pertaining to this purchase, and no other agreement of any kind, verbal understanding or promise whatever will be recognized."

This suit was brought by the Hopkinsville Motor Company against W. J. Massie to recover on the $245 note and enforce its lien on the tractor. Massie filed an answer and counterclaim pleading in substance that plaintiff represented that the tractor was a new model Fordson tractor and would do first-class work for which the same was designed, but that the tractor was not a new model and would not do first-class work, and that by reason thereof he had been damaged in the sum of $852, for which he asked a recovery against plaintiff. The affirmative allegations of the answer were denied by a reply, and on final hearing the court dismissed the petition, canceled the note, and gave Massie judgment against plaintiff for the sum of $75. From that portion of the judgment dismissing the petition and canceling the note plaintiff has prayed an appeal, and from that portion of the judgment limiting defendant's recovery on the counterclaim to $75 defendant has prosecuted a cross-appeal.

According to the evidence for Massie, he had an old tractor that did satisfactory work. Appellant induced him to purchase a new tractor on the representation that the new tractor had greater power and would do better work. After testing the tractor it proved deficient in power and would not do the work satisfactorily. Appellant attempted to make the tractor do the work, but could not do so. The old tractor did the work satisfactorily with the same implements. After the repeated efforts of appellant to make the machine work proved futile appellee tendered the machine back to appellant, demanded the old one, and asked for a rescission of the contract. According to appellant the tractor was a new model and did the work satisfactorily. Not only so, but the first engine in the tractor was installed in a secondhand tractor and sold to a Mr. Chapman, who testified that the tractor did satisfactory work.

Though there is substantial evidence to the effect that the failure of the tractor to work...