E.T. Kenney Co. v. Anderson

• Decision Date: 15 June 1904
• Citation: 81 S.W. 663
• Parties: E. T. KENNEY CO. v. ANDERSON et al.
• Court: Kentucky Court of Appeals

81 S.W. 663

E. T. KENNEY CO. v. ANDERSON et al.

Court of Appeals of Kentucky.

June 15, 1904

Appeal from Circuit Court, Madison County.

"Not to be officially reported."

Action by the E. T. Kenney Company against Neal T. Anderson and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Burnam & Moberly and W. S. Moberly, for appellant.

Chenault & Chenault, H. C. Hazelwood, and J. Tevis Cobb, for appellees.

NUNN J.

On the 13th of June, 1899, the appellees made an agreement with one Robt. C. Hall for the purchase of one Star engine on trucks at an agreed price, which was afterwards modified on the date of the receipt of the engine, to wit, the 22d of June, 1899 and on that day the appellees executed to the Aultman Company their four notes, three of them for $300 each and one for $180. These notes were executed in the office of Delong &amp Co., and delivered to one Benefiel. At that time, and for some months afterwards, appellees were under the belief that Hall, Benefiel, and Delong & Co. were all the agents of the Aultman Company, and were also under the impression that they had purchased the engine from that company, when the fact was that the before-named parties were the agents of the appellant, the E. T. Kenney Company, who purchased and sold the machinery of the Aultman Company. The appellees paid the first of the $300 notes, with its interest, and $72 on the $180 note, and failed and refused to pay anything further thereon, and this action was brought by the appellant to recover the balance of the purchase price, and to enforce the mortgage lien which appellant had retained on this engine and trucks.

To this petition appellees filed their answer and several amended answers, in which they, in substance, alleged that at the time of their purchase of this engine the appellant warranted it to be made of good material, well constructed, and, with proper use and management, to do as good work as any other of the same size and rated capacity made for the same purpose, and they warranted it to be a 14 horse power engine, and suitable for hauling a threshing machine over the country and driving the machinery when threshing. The written warranty of the appellant, which was delivered to the appellees at the time of the purchase of the engine, is as follows:

"The machinery and extra parts specified above are warranted to be made of good material, well constructed, and with proper use and management, to do as good work as any other of the same size and rated capacity made for the same purpose. If, inside of six days after the date of its first use, it shall fail in any respect to fill this warranty, written notice shall be given immediately by the purchaser to the Aultman Co. at its office at Canton, Ohio, by registered letter, and written notice also to the local agent through whom same is received, stating particularly in said letter and notice what parts and wherein it fails to fill the warranty, and a reasonable time to be allowed said company to get skilled workmen to the machinery and remedy the defects, if there be any (if the defects be of such a nature that a remedy can not be suggested by letter), the purchaser to render all necessary and friendly assistance and co-operation in making the machinery a practical success. If the machinery, or any part thereof, or any of the separate attachments, can not be made to fill the warranty, then the defective machine, or part, or attachment (as the case may be), shall be returned immediately by the undersigned to the place where it was received, with the option in the company either to furnish another machine, or part, or attachment, in place of that so returned, which shall perform the work, or return the consideration or a proportionate share thereof, and rescind the contract in whole or in part, as the case may be, and be released from any other liability whatever herein, and to ascertain the proportionate share of the consideration for any machine, part or attachment, when its price is not specified separately, the gross consideration shall be apportioned in proportion to the list prices printed hereon, and shall be refunded out of the cash and credited on the several notes proportionately.

"If any metallic piece breaks during the first season by reason of any flaw therein, the company will furnish a new piece in its place, free on board cars at the factory, upon said broken piece being returned to the company promptly, if it appears thereby to the satisfaction of the company that the break was caused by a flaw.

"If a mechanical expert visits the machine for the company, and does not leave it working properly, the purchaser shall give immediate notice in writing or by prepaid telegram to said company at its home office, and to the local agent, and state in writing specifically any failure or neglect complained of.

"Failure to make settlement for the machine at the time and place of delivery and in the manner above provided; or a failure to give any of the notices in writing as provided for herein; or failure to render friendly assistance or co-operation; or keeping the machine after the six days allowed as above provided; or any abuse, misuse, unnecessary exposure or waste committed or suffered by the purchaser, shall be a waiver of the warranty, and a full release of the warrantor, without in any way affecting the liability of the purchaser for the price of the machine or notes given therefor.

"Notice: All agreements appertaining to this order (except the mere acceptance thereof at the home office) are included in the above.

"The above warranty is the form furnished by the Aultman Co., and is the only form of warranty made or authorized by it to be given on the above named machine. No agent or other person shall make any different warranty, or vary or modify any of the terms, or waive any of the conditions of this warranty, and any attempt to do so shall not bind the company nor affect this contract. Local agents and salesmen have no general agency powers, and are authorized only to make sales in accordance with special instructions and upon forms furnished by said company. Mechanical experts are not agents, and have no authority to bind said company by any contract or statement whatever, or to vary any terms or waive any condition of any contract. This order is subject to the acceptance and approval of the company at its home office, and when so approved and accepted, is a binding contract which no person has authority to modify or vary in any respect, or to waive any of its conditions except in writing approved by the management at the home office, and any attempt to otherwise change any of the terms or waive any of the provisions of the warranty will not be binding on said company; nor will any modification in the price, terms of payment or securities in any way affect the warranty and its provisions. Notes for any part of the purchase price must all be made payable to the company on the forms furnished by it; otherwise they will not bind said company nor release the buyer."

The appellees alleged that they performed specifically each of the conditions required of them by the contract, and also alleged that the engine proved to be worthless; that it was not made of good materials, nor was it well constructed, nor did it, with proper use and management, do as good work as any other of the same size and rated capacity made for the same purpose; that appellant did not and could not make it perform the work for which it was purchased as required by the contract; and also alleged that they had paid about $400 of the purchase price after they and appellant had ascertained the defects and insufficiency of the machine as stated. The payments were made to Mr. Benefiel, appellant's alleged general agent, under the following circumstances and agreements: Appellees refused to pay anything on the machine for the reason of the failure of the warranty, whereupon Benefiel promised and agreed with them that, if they would make the payment, before the next threshing season began the appellant would send an expert to the machine and have him make it comply with the warranty, and, in case of a failure in this, the company would furnish the appellees a new engine, or surrender to the appellees their notes and return to them the cash they had paid. Appellees alleged that the appellant had failed to comply with this agreement made by Benefiel, tendered the engine, and asked a cancellation of the notes sued on, and for a judgment for the money paid by them on the engine, and other damages sustained.

Appellant replied to this answer, entering a denial to each of the allegations therein, and specifically alleged that appellees were estopped from claiming any benefit under the warranty for the reason that they had failed to give the Aultman Company the notices as required by the written warranty, and because the defects in the engine, if any there were, were the result of incompetent and unskilled persons being employed by appellees to run and manage it, and also...