McCormack v. Gilliland

Hough, C. J. In June, 1878, the plaintiffs sold to the [657] defendant, subject to trial, an automatic binder and harvester, for $300, and wire to be used therewith worth $48.24. The binder was warranted to do good work, and if found, on trial, to be as warranted, the defendant was to pay for the same. After trying it, the defendant declined to take it, and so notified plaintiffs’ agent, and about ten days thereafter the defendant hauled it to Holden, where he had obtained it, and unloaded it on the sidewalk in front of the plaintiffs’ store-room. Plaintiffs’ agent, having charge of the store-room, testified that he refused to receive it. It appears that the defendant used the machine several days after he had notified plaintiffs’ agent that he would not take it. On this state of facts plaintiffs instituted the present action, charging the defendant with a conversion of said machine. The facts will not support such an action. If the machine was in reality what it was warranted to be, plaintiffs’ remedy was by action on the contract for the purchase price. If the machine was not what it was warranted to be, and an action for the purchase price could not, therefore, be maintained, plaintiffs might nevertheless maintain an action for the use of the machine after defendant notified plaintiffs’ agent that he would not take it, and for the value of the wire consumed by him. The judgment of the circuit court, which was for the defendant, will be affirmed. The other judges concur