Perkins Windmill Co. v. Kelly

Grant, J. (after stating the facts). We think the court erred. The contracts with the farmers were made by the plaintiff. The farmers were under no obligation to take the mills, unless they were such as they had ordered and contracted for. The contracts with the farmers were at least a part of the consideration for the contract between plaintiff and defendants. The defendants were to deliver the windmills to the farmers and to put them up. They performed that part of the contract by der livering them. Under the evidence of the defendants the farmers promptly refused to accept them, because they were not what they had contracted for. If this were the fact, the farmers were under no obligation to accept them; neither were the defendants. The question of fraud should have been submitted to the jury under the proper instructions. If it be the fact that the mills were not those ordered by the farmers, and the plaintiff was notified thereof, and was in substance also notified that the farmers refused to accept them, and the plaintiff had the opportunity to repossess itself of them, the plaintiff could not recover. Judgment reversed, and new trial ordered. Moore, C. J., and Carpenter, Montgomery, and Ostrander, JJ., -concurred.