Nichols & Shepard Co. v. Stubbs Thresher Co.

• Decision Date: 05 November 1914
• Citation: 170 S.W. 4,160 Ky. 694
• Parties: NICHOLS & SHEPARD CO. v. STUBBS THRESHER CO. ET AL.
• Court: Kentucky Court of Appeals

170 S.W. 4

160 Ky. 694

NICHOLS & SHEPARD CO. v. STUBBS THRESHER CO. ET AL.

Court of Appeals of Kentucky.

November 5, 1914

Appeal from Circuit Court, Hickman County.

Action by the Nichols & Shepard Company against the Stubbs Thresher Company and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded, with directions.

Bennett Robbins & Robbins, of Clinton, for appellant.

R. L Smith, of Clinton, for appellees.

CLAY C.

On May 20, 1912, plaintiff, Nichols & Shepard Company, a corporation, entered into a written contract with the defendants, Stubbs Thresher Company, a partnership composed of E. C. Whayne, F. E. Jordan, Ely Whayne, and others, by which it sold and agreed to deliver to defendants at Fulton Ky. one double-cylinder traction engine, in payment for which defendants agreed to deliver to plaintiff an old engine which they had on hand, and to execute their note for $838, payable September 1, 1912. On June 3, 1912, the engine sold by plaintiff was delivered to defendants at Fulton, Ky. and on the same day defendants executed their note for $838, secured by a mortgage on the engine. Plaintiff brought this action against the defendants to recover on the note in question and enforce its mortgage lien. Defendants pleaded a breach of warranty, and asked that the contract of sale be rescinded. On final hearing the chancellor dismissed plaintiff's petition, and adjudged the return of the old engine which defendants had delivered to plaintiff as part of the purchase price, or, in default thereof, that plaintiff pay to defendants the sum of $1,000, which was fixed as the value of the old engine. From that judgment plaintiff appeals.

It appears that, after the delivery of the double-cylinder traction engine and the execution of the note for $838, the defendants took charge of the engine at Fulton, and drove it from that point to Mrs. Sublett's place in Clinton, Ky. a distance of 12 or 14 miles. In bringing the engine from Fulton to Clinton some of the cogs in the steering gear were broken. The engine remained at Mrs. Sublett's some six or eight days. While there G. W. Long, the local salesman from whom the engine was bought, replaced the broken cogs. The engine was then taken from Clinton to the farm of E. C. Whayne, one of the defendants. Thereafter the engine was attached to a separator and used in threshing wheat. The threshing was begun on July 5th, and continued to July 19th. Defendants all testify that the guiding apparatus connected with the engine was worthless, and that they could not guide the engine. They had great difficulty in getting up hills. After they began threshing, they could not make the engine hold steam, although they used great quantities of wood and coal, and kept men constantly employed for that purpose. It is also in proof that plaintiff's agent, G. W. Long, was present while defendants were carrying the engine home, and he informed them that they could take it home at the company's risk.

On July 13, 1912, defendants wrote to plaintiff that the engine in question was not giving satisfaction, and that they were not able to guide it. The letter further stated that the front wheels would not lead the engine, and that the engine would not pull with less than 130 pounds of steam. The letter requested that someone be sent at once to fix the engine. In reply to this letter plaintiff, on July 16th, wrote the defendants that the engine was not guaranteed to give satisfaction, but guaranteed to do its work; that if the roads were slippery, and the front wheels of the engine would not stay on them, and they wanted the engine to pull to its capacity, they should carry steam enough and it would pull; that, in order to pull the engine, 140 pounds of steam should be carried at all times. About the same time plaintiff's manager at Nashville, who had also received a copy of plaintiff's letter of July 13th, wrote to defendants that there was nothing in their letter that showed that the engine was wrong; that the front wheels of the engine were the best that could be produced, and that if they wanted the engine to pull they should carry more than 130 pounds of steam. In this letter he asked what was wrong about the engine, and what there was about the engine that they wanted plaintiff to fix. On September 26, 1912, defendants wrote plaintiff that the engine was not doing its work; that he had been advised by plaintiff to keep it off slick roads, and by the agent at Nashville to grease it, but neither of them had said anything about fixing it; that they were ready to comply with their part of the contract if plaintiff would comply with its contract; that they were willing to pay in full any day that plaintiff would fix the engine. On November 23, 1912, defendants wrote plaintiff to the effect that they had stated in their previous letters that they were ready to settle for the engine as soon as it was put in good running order; that they had written plaintiff in July that the engine was not coming up to contract, and asked it to send some one to fix it, but their letter was ignored; that plaintiff need not expect any payment on the note until it fixed the engine. Later the note was placed in the hands of plaintiff's attorney for collection, and defendants were advised of the fact that suit would be brought. On March 19, 1913, defendants in a letter to plaintiff, made a proposition to plaintiff to extend the contract for one year without interest if it would fix the engine so it would fulfill the contract; that if they failed to do so they would take same back and pay for the old engine. On April 16, 1913, defendants wrote plaintiff that, as it had failed to fix the engine, they therefore surrendered said engine to plaintiff at Stubbs, Ky. on the Mobile & Ohio Railroad. The engine in question was sold under the following warranty:

"Each engine, separator, feeder, wind stacker, weigher, bagger, or other machine, or attachment, above described, is purchased and sold as a separate and distinct machine, at a stipulated, separate, and agreed price, and subject to the following express warranty and agreement, and none other, viz.:

First. That each of said machines is well-made and of good materials. If any part of a machine (except belting) should fail during the first season in consequence of a defect in material or workmanship, the vendor has the option to repair the same, or to furnish a duplicate of any defective part, free of charge, except freight, after presentation of the defective piece, clearly showing a flaw in the material, at the factory, or to the dealer through whom said machinery was bought. Defective parts do not involve damages, or a return of the machinery.

Second. That each of said machines, with proper management, is capable of doing more and better work than any other machine made of like size and proportions working under the same conditions and on the same job; conditioned that, if within five days from its first use it shall fail to fill this warranty, written notice shall be immediately given by the purchaser to Nichols & Shepard Company, at Battle Creek Mich., by registered letter, stating particularly how and wherein it fails to fill the warranty. Reasonable time shall be allowed the vendor to get to the machine with its workmen and remedy the defect, if any there be (unless it be of such a nature that a remedy may...