Kester v. Miller
| Decision Date | 08 December 1896 |
| Citation | 119 N.C. 475,26 S.E. 115 |
| Court | North Carolina Supreme Court |
| Parties | KESTER et al. v. MILLER et al. |
Sale—Action for Price—Breach of Warranty — Damages—Interest.
1. Defendants purchased under warranty an engine, making a partial payment thereon. On failure of the engine to do satisfactory work, at the request of plaintiffs defendants retained the engine, and for several months plaintiffs attempted to remedy the defects therein. Held, in an action for the balance due, that defendants were entitled to damages for the loss sustained during that time on account of idle hands and extra fuel.
2. Where plaintiffs sold an engine under a warranty, they were entitled, in an action for the price, to interest on any balance due, less the damages for breach of warranty.
Appeal from superior court, Forsyth county; G. H. Brown, Judge.
Action by J. H. Kester and D. E. Kester, trading as Kester Bros., against G. L. Miller and G. E. Miller, trading as Miller Bros. Judgment for plaintiffs, and defendants appeal. Modified and affirmed.
Jones & Patterson and A. E. Holton, for appellants.
Watson & Buxton, for appellees.
The plaintiffs sold, with a warranty as to quality and finish, to the defendants, an engine of a certain description, and delivered the same. There appeared a defect in the machine after it was put in operation, and complaint was made to the plaintiffs. The plaintiffs agreed to remedy the fault, and began the work. Upon the payment to the plaintiffs on August 7, 1893, the plaintiffs executed to the defendants a receipt, expressed as follows: It was in evidence that the plaintiffs continued from time to time between May 1, 1893, and October 15, 1894, as they were called on by the defendants, to work on the engine to remedy the defect. After the last-named date they demanded the balance due. It was in evidence that during all the time in which the plaintiffs were at work on the engine they were insisting that the defendants would retain it, and that they would continue to try to remedy the knocking (the defect complained of). The work and improvements put upon the engine by the plaintiffs under their agreement of August 7, 1893, made no great change in the condition of the machine. On the 15th day of October, 1894, the plaintiffs brought this action to recover the purchase price of the engine, less the amount paid on the 7th August, 1893. The defendants, by way of counterclaim, averred that they had been greatly damaged during the time the plaintiffs were trying to remedy the defect in the engine by loss on account of their hands being idle, and by the increased amount of fuel consumed, made necessary by operating the engine with the defect. They also averred that they had never accepted the machinery as a full performance of the plaintiffs' contract; that the engine did not come up to the warranty and description. The issues raised by the pleadings were submitted without exception from either side. The jury found the difference between the contract price and the actual value of the engine to be $450. They also found that the defendants' damages on account of idle labor was $200, and for extra coal consumed by the engine $150. His honor reserved the question as to whether the defendants were entitled to damage for idle labor and extra coal, and, upon the jury finding for the defendants for these Items, he held as a matter of law that the de-fendants were not entitled to the recovery. The judgment was rendered by his honor for the contract price, $1,950, less the amount found by the jury to be the difference between the contract price and the actual value of the engine ($450), less the $100 found by the jury as damages by reason of the plaintiffs' failure to supervise and properly put up the masonry and work necessary to set the machine in position, and less the payment made on August 7, 1893, with interest on the balance, $1,088.03. The defendants filed exceptions to the judgment as follows: (1) That the court erred in not giving defendants credit for the sum of $350 on account of idle labor and extra coal, as assessed by the jury. (2) That the court erred in allowing interest to the plaintiffs prior to the issuing of the summons, the...
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Troitino v. Goodman, 96.
...value and then the cost of eliminating this difference. The case is not like Underwood v. Coburn Motor Car Co, supra, or Kester v. Miller, 119 N.C. 475, 26 S.E. 115, where the vendee was induced to make repairs at the instance of the vendor in an effort to see if the car in the one case and......
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Troitino v. Goodman
...value and then the cost of eliminating this difference. The case is not like Underwood v. Coburn Motor Car Co., supra, or Kester v. Miller, 119 N.C. 475, 26 S.E. 115, the vendee was induced to make repairs at the instance of the vendor in an effort to see if the car in the one case and the ......
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Mason v. Nelson
... ... 688, 32 So. 287, citing and ... approving Lattin v. Landa, supra, Bank v. White, ... supra, Finch v. Gregg, supra, and Miller v. Bank, 76 Miss ... 84, 23 So. 439. In the Searles Case plaintiffs purchased a ... lot of corn from the Smith Grain Company at a fixed price ... refuse it or, if he received it and was sued for the price, ... to have set up the loss by reason of such defects. Kester ... v. Miller, 119 N.C. 475, 26 S.E. 115; McKinnon v ... McIntosh, 98 N.C. 89, 3 S.E. 840. In common justice the ... consignee should be ... ...