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

• Decision Date: 19 June 1916
• Docket Number: 18268
• Citation: 72 So. 138,111 Miss. 715
• Court: Mississippi Supreme Court
• Parties: J. I. CASE THRESHING MACH. CO. v. MCCOY et al

72 So. 138

111 Miss. 715

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

No. 18268

Supreme Court of Mississippi

June 19, 1916

APPEAL from the circuit court of Scott county, HON. J. A. MCLAURIN Judge.

Suit by J. I. Case Threshing Machine Company against S.D. and Sam C McCoy. From a judgment for defendants, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed.

Cooper & Cooper, for appellant.

Howie &amp Howie, for appellee.

OPINION

SYKES, J.

The appellant, plaintiff in the court below, instituted suit in the circuit court of Scott county against the appellees for the sum of two thousand six hundred and ninety dollars, the purchase price of a gasoline tractor, a hay baler, and a four-bottom gang plow. The indebtedness was evidenced by certain promissory notes given by the appellees to the appellant. Shortly before the time of the signing of the notes a contract of sale was also executed by the appellees. The title to the property was reserved, both in the contract and in the notes, in the vendor, until all of the notes had been paid. The contract of sale contains certain warranties and conditions which are unnecessary to be set out in full. The parts material to this decision are as follows:

"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 proportion working under the same conditions on the same job, if properly operated by competent persons, with sufficient steam or horse power, and the printed rules and directions of the manufacturer 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 Threshing Machine 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 cooperation, without compensation for labor or material furnished, and the company reserving the right to replace any defective part or parts, if, after giving notice and opportunity to render 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 attempts 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. Failure to so make such trial, or to give such notices in any respect, shall be conclusive evidence of due fulfillment of warranty, on the part of said company, and the machinery is satisfactory to the purchasers. And the company shall be released from all liability under the warranty. . . .

"Failure to fully settle on delivery as above provided, or to comply with any of the conditions of this warranty on the purchasers' part, or any change in the printed terms of this warranty or the conditions thereof by any person whomsoever, agent or otherwise, by addition, erasure, or waiver, or any abuse, misuse, unnecessary exposure of machinery, or waste committed or suffered by the purchasers, discharges the company from all liability whatever. No representation made by any person as an inducement to give and execute this order shall bind the company."

The defendants in the court below pleaded a...