J.I. Case Threshing Machine Co. v. Dulworth

• Decision Date: 07 December 1926
• Citation: 216 Ky. 637
• Parties: J.I. Case Threshing Machine Company v. Dulworth.
• Court: United States State Supreme Court — District of Kentucky

216 Ky. 637

J.I. Case Threshing Machine Company v. Dulworth.

Court of Appeals of Kentucky.

Decided November 17, 1926.

Rehearing Denied with Modifications December 7, 1926.

1. Sales — Benefit of Warranty Does Not Run with Chattel on Resale so as to Give Subpurchaser Right Against Original Seller.

— The benefit of a warranty does not run with a chattel on its resale so as to give subpurchaser any right of action against the original seller.

2. Sales — Contract Requiring Purchaser to Take Steps Within Certain Time to Rescind Contract, or Obtain Services of Seller to Make Machinery Work, Valid and Enforceable. — A contract for the purchase of machinery, providing that purchaser is to take steps within a certain time to rescind the contract, or obtain services of seller in making machinery work, is valid and enforceable.

3. Sales — Purchaser Failing to Comply with Alleged Contract as to Return of Tractor, if Unsatisfactory, Waived Right to Rescind Contract or Recover Damages for Deceit or on Warranty Resting Thereon. — Where alleged contract for sale of tractor provided purchaser was to return or offer to return tractor to seller within six days after delivery, if unsatisfactory, purchaser who failed to comply therewith within time specified waived right to rescind or recover damages for deceit or upon the warranty, resting upon such alleged contract.

4. Sales — Judgment Rescinding Contract Erroneous, where Not Shown that Purchaser had Any Contractual Relations with Defendant Company. — Purchaser of tractor could not maintain suit against threshing machine company to rescind contract or recover damages for breach of warranty, where he had not purchased tractor from such company and had no contractual relations with them at any time, but purchased machine from implement dealer, and judgment of lower court rescinding contract was erroneous.

5. Bills and Notes — Novation — Giving of New Note to Transferee of Payees by Maker and His Surety Held Novation, Relieving Payees from Liability on Indorsement. — Where maker and surety on note gave new note to bank, transferee of payees, there was a novation which relieved payees from liability on endorsement.

6. Infants — Giving of Renewal Note After Attainment of Majority Held Ratification, Estopping Assertion of Plea of Infancy. — Where minor gave note for tractor, and after becoming of age gave renewal note, he thereby ratified note and contract, and estopped himself to set up plea of infancy.

7. Infants — Infant's Rescission of Contract Must be In Toto. — Infant's rescission of contract of purchase must be in toto.

8. Infants — Infant's Contract, though Voidable, May be Ratified by Him on Attaining Majority, and Thereupon is as Binding as if Not Made During Infancy. — Contract of infant, though voidable, may be ratified by him when he becomes of age, and, if ratified, is as binding as if made after majority.

9. Sales — Mere Showing that Tractor Would Not do Work Contemplated by Purchaser Held Not to Warrant Recovery as for Breach of Warranty that it was as Capable as Other Like Machines. — Warranty that tractor was of good material, durable, and as capable as other machines of equal size and proportions, working under same conditions on same job, if competently operated, held not to warrant recovery on mere showing that tractor did not generate enough power to do the kind of work contemplated by purchaser.

10. Sales — Alleged Written Contract Held to Preclude Buyer of Tractor from Relying on Implied Warranty. — Purchaser of tractor held not entitled to rely on implied warranty, in view of express provision of alleged written contract.

11. Sales — Express Warranty Generally Excludes by Implication all Inconsistent Implied Warranties. — Generally express warranty in written contract excludes by implication all inconsistent implied warranties on same subject.

Appeal from Green Circuit Court.

BAGBY & HUGUELY for appellant.

ROLIN HURT, JEFF HENRY and C.H. NOGGLE for appellee.

OPINION OF THE COURT BY JUDGE SAMPSON.

Reversing.

This suit was commenced in the Green circuit court by appellee, Dulworth, against the J.I. Case Threshing Machine Company to obtain a rescission of a contract of purchase of a farm tractor, and, if that could not be done, for judgment on a warranty for the price, $1,217.92, agreed upon to be paid for the tractor, the purchaser having executed his negotiable note and it having passed in due course of business to a banking institution. The firm of Leachman & Walton, dealers in farm machinery and implements at Greensburg, Kentucky, sold the tractor to Dulworth about the 8th of March, 1920, and took from him his promissory note for the purchase price, with his father, J.A. Dulworth, as surety. Previous to that time Leachman & Walton had entered into a contract with the J.I. Case Threshing Machine Company by which the former were to have the exclusive privilege of handling and selling in Green county farm machinery manufactured by the company. At the time of the making of the contract Leachman & Walton purchased the tractor now in controversy and soon thereafter paid the full purchase price to the company and the tractor was delivered to Leachman & Walton. They put it on sale and young Dulworth purchased it from them as stated above. The tractor was carried to the farm of the father of young Dulworth, in Green county, and there tested out. The firm of Leachman & Walton attempted to assist him in this work. The tractor, according to young Dulworth, proved unsatisfactory. Its power was not great enough to pull plows on the farm and to do satisfactory plowing. This is denied by the company and its agent who examined the tractor and operated it on the farm. According to the evidence Dulworth called upon the agents of the company about April 28th to send an experienced person to his farm to put the tractor in condition and to operate it. This was almost two months after the tractor was delivered to the farm of young Dulworth.

Appellant, Threshing Machine Company, insists that there was no privity of contract between appellee, Dulworth, and it, and consequently that it is not liable to Dulworth upon any warranty made by Leachman & Walton concerning the tractor. It is a well-settled rule recognized at common law that the benefit of a warranty does not run with a chattel on its resale so as to give the sub-purchaser any right of action against the original seller. 24 R.C.L. 159, 51 L.R.A. (N.S.) 1111; The Asher Lumber Co. v. Cornett, &c., 22 R. 569; Prater v. Campbell, 110 Ky. 23, 35 Cyc. 370.

While there is some evidence upon the subject it does not clearly appear that there was any written contract of sale between the firm of Leachman & Walton and appellee, Dulworth. However, Dulworth says that the firm of Leachman & Walton warranted the farm tractor to him as being a first class machine, "the best tractor made and warranted to do good work in plowing, harrowing and disking farm lands." It is averred in the petition that "this warranty induced the plaintiff to purchase the tractor and to execute his note therefor for the sum of $1,217.92, with his father, J.A. Dulworth, as his surety; that said note was made negotiable and payable to bearer and was assigned to the People's Bank, Greensburg, Kentucky, for a valuable consideration before maturity, and thereafter when said note became due same was paid by plaintiff."

He also stated in evidence that he received a written contract from the firm of Leachman & Walton containing a warranty of the tractor but that his copy of the contract had been lost or misplaced, and he gives no indication of the terms of the warranty. Apppellee intimates he received the usual printed contract containing the company's standard warranty of tractors, and if he did the warranty was a limited one as shown by a copy of such contracts filed in the record, and which we will later consider, and the warranty ran not from the Threshing Machine Company but from Leachman and Walton, and rested upon many conditions, one of which required the purchaser of a tractor to return or offer to return the tractor to the seller within six days from its delivery, if it were unsatisfactory. There is no pretense on the part of Dulworth that this condition of the contract was complied with by him. In fact, it seems that he did not call upon the appellant company to make the tractor good or to keep its warranty until the tractor had been in his possession for something like two months. Courts have frequently held that contracts for the purchase of machinery like the one in question, providing that the purchaser shall take steps within a certain time to rescind the contract or to obtain the services of the seller in making the machinery work, are valid and enforceable. 35 Cyc. 424-425 and 426, 24 R.C.L. 241; City of Bardwell v. Southern Engine and Boiler Co., 130 Ky. 223.

Inasmuch as appellee, Dulworth, failed to call upon the company within the time specified in the contract upon which he relies to rescind the contract, if contract he had, or to make the machinery good, he waived his cause of action and is not now entitled to have a rescission of the contract or to recover damages of the company for deceit, or upon the warranty, all of which rests upon the contract, if indeed he had such contract. There is, however, a much more potent reason why apppellee, Dulworth, is not entitled to a recovery in this case. He did not purchase the tractor from the Threshing Machine Company and had no contractual relation with that company at any time concerning the tractor. True, the company at the request of the dealers and Dulworth sent its experts to the farm of Dulworth to examine the tractor and make it operate. This was done, as the company explains, long after the delivery of the tractor in order to facilitate the sale of its machinery by...