J. I. Case Threshing Mach. Co. v. Scott

• Decision Date: 04 June 1917
• Docket Number: 13803.
• Citation: 165 P. 485,96 Wash. 566
• Court: Washington Supreme Court
• Parties: J. I. CASE THRESHING MACH. CO. v. SCOTT et al.

165 P. 485

96 Wash. 566

J. I. CASE THRESHING MACH. CO. v. SCOTT et al.

No. 13803.

Supreme Court of Washington

June 4, 1917

Department 2. Appeal from Superior Court, Douglas County; R. S. Steiner Judge.

Action by the J. I. Case Threshing Machine Company against W. H Scott and others. Judgment for plaintiff, and defendants appeal. Modified.

Cade &amp Barrows, of Wenatchee, for appellants.

Crollard & Crollard, of Wenatchee, for respondent.

HOLCOMB J.

Action by respondent J. I. Case Threshing Machine Company, hereinafter called the company, against appellants W. H., C. E., and L. H. Scott, to recover on three promissory notes and to foreclose a chattel mortgage on a certain steam plowing outfit.

Some time in March, 1913, one Wharf, an agent of the company, called at appellants' farm for the purpose of selling to them a plowing outfit. He examined the soil and recommended the machine finally sold as being adapted to plow that particular soil. These negotiations culminated in a written agreement of sale, dated April 8, 1913, the material portions of which are as follows:

'J. I. Case Threshing Machine Company, Racine, Wisconsin:

'You will please ship or deliver on or before the ___ day of _____ at once (or as soon thereafter as you can furnish for transportation or delivery), to Wenatchee or other convenient station in the state of Washington in care of Wells & Morris for the undersigned purchaser the following goods: One Case 80 horse power simple steam engine straw trac burning, * * * with the usual fixtures and extras furnished as part of its regular equipment. Also for the above machinery 1-10 bottom 14"' Case hand lift eng. gang plow stubble btm. fuel bankers & 12"' extension rims on engine, 1 headlight, 1-16 bbl unmtd eng tender, tank pump & hose.

'In consideration whereof, purchaser will receive same on cars on arrival subject to the warranty below printed and pay freight and charges thereon and pay to your order $3,325.00 as follows: Cash $_____, and execute notes on company's blanks with approved security, as below, with interest at 8 per cent. per annum from date until maturity and 10 per cent. per annum from maturity until paid; note for $1,108.00 due November 1st, 1913; note for $1,108.00 due November 1st, 1914; note for $1,109.00 due November 1st, 1915; * * * secured by proper storage, first mortgage on said machinery and earnings thereof, and also _____; and if purchaser fails to pay said money or execute and deliver said notes and mortgage (properly filed or recorded), it is agreed as a condition hereof that the title to said goods shall not pass and this order shall at the company's option stand as purchaser's written obligation having the same force and effect as notes and mortgage for all sums not paid in cash, and the whole amount of purchase money shall be due and payable, and the company shall stand discharged from all warranty. Said machinery is purchased upon and subject to the following mutual and interdependent conditions, and none other, namely:

'It is warranted to be made of good material, and durable with good care, and to be capable of doing more and better work than any other machine made of equal size and proportions, working under the same conditions on the same job, if properly operated by competent persons, with suitable power, and the printed rules and directions of the manufacturers intelligently followed. The condition of the foregoing warranty is that if, after a trial of ten days by the purchasers operating in the manner specified, said machinery shall fail to fulfill the warranty, written notice thereof shall at once be given to the J. I. Case T. M. Company at Racine, Wisconsin, and also to the dealer from whom received, stating in what parts and wherein it fails to fulfill the warranty, and reasonable time shall be given to said company to send a competent person to remedy the difficulty (unless it be of such a nature that a remedy may be suggested by letter), the purchasers rendering necessary and friendly assistance and co-operation, without compensation for labor or material furnished, and the company reserving the right to replace any defective part or parts. If, after giving the notice and opportunity to remedy the difficulty complained of, as above provided, the company fails to send a representative to remedy said difficulty (or to suggest an efficient remedy by mail), or if, upon its attempt to remedy the same, the machinery cannot be made to fill the warranty, the part that fails is to be returned immediately by the purchaser, free of charge to the place where it was received, and the company notified thereof, whereupon the company shall have the option either to furnish another machine, or part, in place of the one so returned, which shall fill the warranty, or to return the notes, or money received for the machine or part so returned, and the contract shall be rescinded to that extent, and no further claim made on the company.'

The outfit was delivered to appellants at Wenatchee, on cars, on the date of this instrument, and was removed to appellants' farm, some 12 miles distant. While the evidence is somewhat in conflict as to whether the machine fulfilled the warranty, it cannot be successfully disputed that great trouble was experienced in operating it; in fact the engine would not generate sufficient steam to haul the plows until the arrival of the of the company's experts named Dunseth, who changed the grate and generated 175 pounds of steam, when a small amount of land was plowed. At that time only eight bottoms of the ten were used and a portion of the time only six, and the plowing that was done was not deep enough. As the wind blew away the straw used for fuel, the plowing was discontinued for the day, and that night at the solicitation of Dunseth the appellants signed a satisfaction slip stating that the machine was working to their satisfaction and filing the warranty. Controversies concerning the return of the machine were had between appellants and the company, and as appellants maintained that the machine failed to do the...