International Harvester Co. of America v. Bean

• Decision Date: 01 October 1914
• Citation: 159 Ky. 842,169 S.W. 549
• Parties: INTERNATIONAL HARVESTER CO. OF AMERICA v. BEAN.
• Court: Kentucky Court of Appeals

169 S.W. 549

159 Ky. 842

INTERNATIONAL HARVESTER CO. OF AMERICA v. BEAN.

Court of Appeals of Kentucky.

October 1, 1914

Appeal from Circuit Court, Ohio County.

Action by L. B. Bean against the International Harvester Company of America. From a judgment for plaintiff, defendant appeals. Affirmed.

H. P Taylor, of Hartford, and Humphrey, Middleton & Humphrey, of Louisville, for appellant.

M. L Heavrin and Ernest Woodward, both of Hartford, J. M. Porter of Beaver Dam, and A. D. Kirk, of Hartford, for appellee.

HANNAH J.

L. B Bean was engaged in the operation of a transfer line for the transportation of passengers and their baggage, and mail, express, and freight shipments, between Hartford and Beaver Dam, in Ohio county. He was visited by an agent of the International Harvester Company of America, who proposed to furnish an auto wagon suitable for operation in the transfer line mentioned. This agent was made acquainted with the nature and condition of the roads to be traversed and the needs and requirements of Bean in the way of vehicular equipment. Bean possessed little or no knowledge of vehicles of this character and their performance under the conditions to which same would be subjected in his use, but, relying on the skill and judgment of the company's agent in furnishing him a machine suited to his requirements, he ordered from the Harvester Company one auto wagon. The Harvester Company manufactures several styles of these auto wagons, and the particular style of auto wagons so ordered was that selected and recommended by the company's agent. When the auto wagon was delivered to him, Bean paid for it, and placed it in service on his transfer line. At the expiration of about 60 days, he notified the Harvester Company that it was worthless for his purposes and that it was held subject to the company's demand. He thereupon instituted a suit in equity in the Ohio circuit court against the Harvester Company for rescission of the sale and recovery of the purchase money paid by him.

The company answering, alleged that the only warranty made by it was one contained in the order signed by Bean for the vehicle in question, which contained the following language:

"The International Harvester Company of America (a corporation) hereby warrants the auto vehicle herein ordered to be well made, of good materials, and hereby agrees to replace free of charge any broken parts that are defective (except tires, on which there is no warranty): Provided they break or prove defective within sixty days from the receipt of the auto vehicle by the purchaser, and said company is promptly requested to supply the new part, but not otherwise: Provided, also, that the defective part is delivered at the same time said request is made to the company's agent from whom it was purchased. This express warranty excludes all implied warranties, and no agent has authority to change or modify it, or to change, modify or vary in any manner any of the terms or conditions of this contract of purchase and sale."

The chancellor rendered judgment in favor of plaintiff, decreeing a rescission of the sale, directing the return of the auto wagon to defendant company, and awarding plaintiff judgment against defendant company for the amount of the purchase price paid by him therefor, together with the costs of the action. From that judgment, this appeal is prosecuted.

1. Appellant company's first contention is that appellee failed to act promptly, and thereby lost his right to rescind, if any he had. It is conceded by appellant that the buyer may rescind an executed sale for breach of warranty. Harrigan v. Advance Thresher Co., 81 S.W. 261, 26 Ky. Law Rep. 317; Ruby Carriage Co. v. Kremer, 81 S.W. 251, 26 Ky. Law Rep. 274; Cook v. Gray, 2 Bush, 121. But the offer to rescind must be made within a reasonable time after the discovery of the breach of warranty or worthlessness of the machine. Bernard Leas Mfg. Co. v. Waller, 36 S.W. 531, 18 Ky. Law Rep. 346; Bailey v. Nichols Sheppard & Co., 8 Ky. Law Rep. 64; J. I. Case Threshing Machine Co. v. Lyons, 72 S.W. 356, 24 Ky. Law Rep. 1862; Spruot Waldron & Co. v. Hunter, 98 S.W. 1006, 30 Ky. Law Rep. 380.

Appellant contends that as appellee commenced the operation of the auto wagon on his transfer line about May 1st, and continued to retain it until July 8th, before he notified appellant of his claim of rescission, appellee did not act in time to perfect his right to a rescission.

The testimony for appellee was to the effect that he gave the machine a fair and thorough trial; that on two different occasions, in response to his complaints, the appellant company sent experts to examine and try to make the machine do appellee's work; that appellee tried in every way to make the machine serve the purpose for which he bought it, but without avail; and that, when appellee became finally convinced of its worthlessness for his use, he then, on August 8th, notified appellant company that the machine was subject to its orders.

What is a reasonable time within which the offer to rescind may be made may depend upon a number of circumstances, and in each particular case of this kind the circumstances may be different. It was a duty which appellee owed to appellant company to try to make the machine do the work for which he purchased it; and unless he held it such a length of time as would indicate that he was satisfied with it, or that he was merely retaining it for the service he was deriving from it such holding was not unreasonable. The evidence shows that he did not use it every day of the time he retained it, for he was working on it and trying to get it into shape to serve his purposes; that he was in good faith giving it a fair trial, and not merely keeping it for the use he was making of it, for it was a losing proposition...