The Minnesota Thresher Manufacturing Company v. Awalt

• Decision Date: 18 September 1897
• Docket Number: 202
• Citation: 50 P. 67,6 Kan.App. 665
• Parties: THE MINNESOTA THRESHER MANUFACTURING COMPANY v. JAMES T. GRUBEN AND P. M. AWALT
• Court: Kansas Court of Appeals

50 P. 67

6 Kan.App. 665

THE MINNESOTA THRESHER MANUFACTURING COMPANY v. JAMES T. GRUBEN AND P. M. AWALT

No. 202

Court of Appeals of Kansas, Southern Department, Central Division

September 18, 1897

September 18, 1897,

Error from Sumner District Court. Hon. James A. Ray, Judge. Reversed.

Judgment reversed and cause remanded.

J. A Burnette, for plaintiff in error.

W. W Schwinn, for defendants in error.

OPINION

MILTON, J.

Defendants in error, on June 19, 1888, entered into a written contract with an agent of the plaintiff in error for the purchase of a threshing machine and horse-power. The contract contained an order for the machine, describing it, and an agreement by purchasers to receive the same at Caldwell, Kan., to pay the freight charges thereon, and to give three notes, each for one-third of the purchase price, which was $ 596 net to the Company; it also contained the following clauses:

"It is agreed that the only warranty or representations binding upon the seller are as follows:

"1. That said machinery is well built and with proper management capable of doing well the work for which it was intended, and the engine of developing its rated power, conditional, however, that the buyer shall set up, start and operate it in a proper and skilful manner, and without changing the original construction of any part of it. The buyer shall have three days after it is first started to ascertain whether said machinery is or is not as warranted and represented; if then it is not, he shall at once discontinue the use of it and state full particulars wherein it failed, by letter mailed at once to the seller at Stillwater, Minn., and wait until seller gets a man there to right it. The buyer shall render the man sent necessary and friendly assistance, and after he is through shall at once give the machinery a fair trial of two days; and whatever part of any machinery is not as warranted and represented he shall then return to where he got it, and the seller may either furnish another part, or may require the return by the buyer of the remainder of such machine and then furnish another in its place, or refund what he received for it. If, however, the trouble arose from the improper handling of the machine, the buyer shall pay the cost of thus righting it. The use of part or all of said machinery, after said two days' trial, shall be conclusive evidence that it is as warranted and represented, and shall estop the buyer from any defenses on any ground to the payment thereof. No claims, counterclaims, demands or offsets shall ever be made or maintained by the buyer on account of delays, imperfect construction or any cause whatever except as provided herein. The terms and conditions hereof shall not be waived, altered or changed without a special written agreement signed by said Thresher Company or their specially authorized agent therefor at Stillwater, Minn."

"3. That the seller shall not be bound by any warranty or representations on any of said property delivered to the buyer before it is fully settled for as provided for herein."

And this further provision:

"This order taken subject to the acceptance of the Minnesota Thresher Manufacturing Company. Purchasers will note that no promise made by any person, whether agent, employee, or attorney, will be considered binding unless made in writing and ratified by home or branch office."

Upon receipt of the machine, defendants in error executed and delivered to the local agent of the Thresher Company at Caldwell their certain promissory notes. Before taking the machine from the station, one of the defendants noticed some signs which indicated that the machine had been used before and repainted. The machine was taken out to a farm, and threshing commenced and carried on for two days. It did not work satisfactorily, and Mr. Gruben wrote and mailed a letter...