Hull v. The Prairie Queen Manufacturing Company

• Decision Date: 06 June 1914
• Docket Number: 18,771
• Citation: 141 P. 592,92 Kan. 538
• Parties: D. H. HULL, Appellee, v. THE PRAIRIE QUEEN MANUFACTURING COMPANY, Appellant
• Court: Kansas Supreme Court

141 P. 592

92 Kan. 538

D. H. HULL, Appellee, v. THE PRAIRIE QUEEN MANUFACTURING COMPANY, Appellant

No. 18,771

Supreme Court of Kansas

June 6, 1914

Decided January, 1914.

Appeal from Sedgwick district court, division No. 1; THOMAS C WILSON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. APPEAL--Permissible Recitations in Abstract of Record. It is permissible to recite in an abstract that a motion for a new trial was filed on all the statutory grounds, and also that the special findings did not support the general verdict, instead of setting out the motion itself.

2. PLEADINGS -- Rescission of Contract -- Damages -- Motion to Elect--Granted--No Error. A petition, if liberally construed, declared upon a rescission of a contract and also for damages for breach thereof. The defendant moved to require the plaintiff to elect whether he sought rescission or damages, which motion was granted, and the plaintiff filed an amended petition praying for rescission, no estoppel so to elect being pleaded or suggested except by an objection to testimony under the amended petition. Held, that the defendant can not be heard to claim that no right so to elect existed.

3. QUESTION OF LAW--Correctly Decided by Jury--No Error. The divisibility of a contract was submitted to the jury, who reached the right conclusion. Held, not materially prejudicial that the court did not declare instead of submitting such divisibility, even if it were a question of law instead of fact.

4. SALE--Engine--Defective Parts--Question for Jury. It was proper to submit to the jury the question whether a certain defective part of an engine could practicably be treated as a "metallic piece" within the terms of a contract for the sale of thrashing machinery.

5. SAME -- Right of Rescission -- Not Improperly Submitted to Jury. In an action for rescission of a contract and a return of the purchase price, whether or not a jury could have been demanded as a matter of right, it was not error to submit the issues to a jury and receive a verdict and answers to special questions.

6. SAME--Warranty--"Reasonable Time" to Rescind--Question for Jury. When the seller of thrashing machinery, under a contract providing that failure to pay the notes given therefor when due, or keeping the machinery a certain time, should constitute a full release and waiver of the warranty, has been notified of defects and has promised and repeatedly attempted to remedy them, the purchaser may retain and try the machinery a reasonable time without waiving the warranty, and ordinarily the reasonableness of such time is for the jury.

7. SAME--Promises to Repair. Such promise and attempts, when made by the general manager of the selling company, are to be treated as made by the principal, and not as if made by an agent without authority to vary the terms of the written contract of sale.

Ezra Branine, and Harry W. Hart, both of Newton, for the appellant.

A. L. Noble, of Winfield, J. N. Tincher, of Medicine Lodge, Keith S. Simpson, of Kiowa, A. M. Cowan, and Chester I. Long, both of Wichita, for the appellee.

West J. Porter, J., dissenting.

OPINION

WEST, J.

The defendant appeals from a judgment rescinding a contract to purchase a thrashing machine outfit, and for a return of the compensation. The plaintiff received the machinery about July 1, 1910, and all together thrashed, as the jury found, about 34,000 bushels of grain and plowed about 290 acres. Early in July, 1911, claiming that the engine and separator were both defective and unfit for the work desired to be done by them, the plaintiff testified that he informed the defendant's general manager that he desired the property taken back and the money and notes refunded. The price of the machinery was $ 3157, of which the engine was taken at $ 2100. The plaintiff traded in a thrashing outfit for which the jury found he was to receive $ 1100, and paid one note of $ 361.75 and about $ 230 freight. The jury found that he received $ 2630 for thrashing and that the use of the engine for plowing was worth $ 360. The plaintiff alleged that the machinery was defective, and the jury so found after considering the testimony of numerous witnesses which presented the usual conflict. It appears that repeated efforts had been made by the company to make the separator do proper work, but the plaintiff claimed and the jury found that it was defective in cleaning and separating the grain from the straw. The trouble with the engine was a crack or break in the ring of the fire-box door which caused the engine to leak. Attempts were made to repair this ring, but the plaintiff claimed and the jury found that the engine failed to comply with the warranty in that it contained a leak. The court left it to the jury to say in what respect, if any, the contract was divisible, with the result that the part covering the engine was found separable from the remainder.

The defendant challenges the plaintiff's right to be heard as to any matters covered by the motion for a new trial and the motion for judgment on the findings for the reason that such motions are not set out in the abstract. It is recited, however, that the motion for a new trial was filed on all the statutory grounds, and also that the special findings did not support the general verdict. This may be informal, but it is not fatal. The substance of the judgment is set out, which is proper, hence the complaint that the journal entry was not inserted is without merit.

The defendant complains that the plaintiff was permitted to amend so as to declare upon rescission, and contends that the original petition amounted to an election which precludes him from departing from an attempt to recover damages. The original petition might by a liberal construction be deemed one to recover on both causes, and as the defendant treated it as such by moving that the plaintiff be required to elect, which motion was granted and complied with, we hardly think it can be heard to urge that no such right to elect existed, especially so when it is considered that to the amended petition electing to proceed as upon rescission an answer and cross petition were filed and no estoppel thus to elect was pleaded or suggested until raised by an objection to testimony.

Error is assigned upon submitting the divisibility of the contract to the jury, and it is argued that this was a matter of law for the court. The contract provided that if any part of the machinery could not be made to fill the warranty, that part which failed should be returned and the company should have the option to furnish another machine or part in its place, or return the money and notes given for the same, and thereby rescind the contract in part or in whole, as the case might be, and be relieved from any further liability thereon. It is urged that at least the court should have instructed that the contract was divisible as to the engine. However, while the contract was so worded as to items and prices that differences of opinion might well arise as to what parts were intended to be separable, the engine was clearly so, and was so found by the jury, and there was no serious complaint about any other machine except the separator, so that it is immaterial whether or not correct instructions were given as to the other constituent items making up the outfit. And as the finding as to the engine was correct no harm came to the defendant because the jury instead of the court reached the right conclusion. ( Behen v. Street Railway Co., 85 Kan. 491, 118 P. 73; Cosper v. Nesbit, 45 Kan. 457, 25 P. 866; Davis v. Wilson, 11 Kan. 74, syl. P 7; Germania Ins. Co. v. Curran, 8 Kan. 9, syl. P 5.)

That the plaintiff is not entitled to rescission as to the engine is asserted, and attention is called to a clause in the contract that "The failure of any separate machine or part thereof shall not effect the contract or liability of the purchaser for any other separate machine or any parts of such affected machine as are not defective," and another that if any metallic piece should break during the first season by reason of a flaw therein, a new piece would be furnished in its place upon prompt return of the old to the company and it appearing to its satisfaction that the break was caused by a flaw. The court instructed that "even if you should find from the evidence that the ring in the fire-box door was defective in that there was a flaw therein, this would not entitle the plaintiff to rescind his contract as to such engine, but would only give the plaintiff the right to return to the defendant such ring as provided in said contract, provided, as elsewhere instructed that you find the contract a divisible contract, and that it was practicable to detach and replace the ring in question." The evidence was to the effect that it would take a boilermaker and a helper about a week to replace the ring with the engine in the field, and the jury found that it was not practicable to return the ring separate from the engine. We can not agree with the defendant that it was the duty of the court to instruct that this ring constituted a "metallic piece" under this clause of the contract instead of leaving it to the jury to find whether it was practical to detach and return such ring. The...