Gale Sulky Harrow Manufacturing Co. v. Stark

The opinion of the court was delivered by VALENTINE, J.: In this action we think the defendant had the right to prove a parol warranty of the sufficiency of the implement purchased for the purpose for which it was purchased, notwithstanding the words contained in the instrument sued on, to wit: “No promise or contract outside of this note [609] will be recognized. Isaac Stark.” Upon the face of the note it would seem that Stark, the promisor, the one who signed the note, would be the person who would not recognize any other promise or contract outside of the note. (See also, Thompson v. Manufacturing Co., 29 Kas. 476.) Wethinkthere was also sufficient evidence from which the jury might find a warranty. The implement was sold, however, by an agent of the plaintiff, but as such agent had the entire control of the property, and assumed to have the right to make the warranty, and as the defendant had no notice to the contrary, and as a warranty at least to the extent of the price of the property would seem to be within the scope of the agent’s authority, and as the company afterward accepted the fruits of the agent’s sale, we would think that the facts would authorize a holding that the agent did have sufficient authority to make the warranty. We also think that the defendant had a right to prove a rescission of the contract of purchase and sale, and his offer to return the property to the plaintiff. Upon this question there is a conflict of authority. Some courts hold that where the title to the property has passed to the vendee, and no fraud can be shown on the part of the vendor, but only a breach of the warranty, the vendee cannot rescind the contract; but other courts hold otherwise, and this court seemingly holds otherwise. (Weybrich v. Harris, 31 Kas. 92.) In the case just cited it is held that the vendee has one of two remedies: First, he may return the property and rescind the contract; or, second, he may affirm the contract and sue for damages for the breach of the warranty. In 3 Am. & Eng. Encyc. of Law, 929 to 931, the following language is used: “A contract may be rescinded when the entering into the same has been induced by a false representation, fraudulent or otherwise, made by a party thereto, provided such representation be one of fact (this rule does not apply to cases of actual fraud), as distinguished from either matter of law or mere opinion or intention, — that it be such as to induce the contract, and that it* be made as part of the same transaction. Such a contract, however, is voidable and not void, and cannot be rescinded if the parties cannot be put in statu quo, nor [610] after third persons have for value acquired rights thereunder, and the rescission must take place within a reasonable time, notice of the election to rescind having been communicated to the other party, though this may be done by bringing suit to have the contract set aside. Otherwise the right of rescission will be considered waived by acquiescence.” We think this is a correct statement of the law, although there are some authorities to the contrary. (See 1 Benj. Sales, [4 Corbin’s Am. Ed.] §§ 623 to 635, and especially §§ 628 to 634.) It is not necessary in this case that we should hold that in all cases of a breach of warranty in the sale of personal property the vendee may return or offer to return the property and rescind the contract, but we think that such is the rule for cases like the present, where the property purchased and received is substantially different from what it was warranted to be and will not answer the purpose for which it was warranted. It must also be remembered that in the present case nothing had been paid for the property when the contract was rescinded, but only a promissory' note had been given for the purchase-price thereof. Of course an offer to return the property where the offer is refused answers the same purpose as an actual return, provided that the property is retained for the benefit of the vendor whenever the vendor may choose to receive it. In this case the vendee offered to return the property and then kept it for the plaintiff, and at all times he kept it just as safely and as well as he kept his own property. The offer to return the property was on two different occasions and to two different agents of the plaintiff. On the first occasion the agent had the note sued on in his possession and was attempting to collect the same. On the other occasion the agent was at the defendant’s house attempting to collect the note, and while- the implement was present and in sight of both the agent and the defendant, the defendant offered to return the same. The plaintiff itself was a non-resident of the state of Kansas, and a resident of Detroit, Michigan, and it does not appear that the plaintiff had any resident agent in Kansas to whom the property could be [611] returned, until about the time when the defendant offered to return the same, and the defendant offered to return the same just as soon as he could find any agent of the plaintiff to whom he could make the offer. Many objections are made by the plaintiff to the instructions given by the court to the jury, and to its refusal to give other instructions asked for by the plaintiff; but still we think the case was fairly submitted to the jury upon proper and sufficient instructions. The principal questions involved in this case as it was tried in the court below were, whether the implement sold by the plaintiff's agent to the defendant was warranted to be sufficient for a particular purpose, or not, and whether it was in fact sufficient for such purpose, or was essentially insufficient. These questions were questions of fact, and we think they were fairly and properly submitted to the jury; and the-jury found against the plaintiff and in favor of the defendant, and the court below approved the verdict, and we do not now think that we can disturb such verdict. The agent who sold the property to the defendant seems to have been an itinerant salesman, who could not afterward be found by the defendant; nor could any agent of the plaintiff be found by the defendant until the note sued on was presented to him for collection; and the defendant did not even know where the place of business of the plaintiff was. We cannot say that any material error was committed by the trial court, and therefore its judgment will be affirmed. All the Justices concurring.