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(- Okla. -, 181 Pac. 288.) therefore not entitled to a rescis- signed, who agrees thereafter to sion of the contract. The contract make no other claim on the Hartin question consisted of a printed Parr Company. order furnished by the company, The company contends that the which Duncan had signed and sent defendant, by keeping the engine in to the company for the shipment more than six days after he had reof the engine and plows, which or- ceived it, and by not returning it at der was made subject to the war- the end of six days, had not comranties contained therein.

plied with the conditions precedent Among the provisions of war- to his right to rescission, and was ranty was the provision that the not in position to ask for a rescisengine would develop certain horse sion. power; also the provision that the A number of cases are cited in oil-cooling device would keep the support of this contention, among cylinders sufficiently cooled for which are several Oklahoma cases the successful operation of the en- as well as cases from other states in gine; and the further provision support of the general

rule: that:

"Where a contract of sale is coupled “If inside of six days from the with an express warranty which date of its first use it shall fail to stipulates the course to be pursued fill the warranty with respect to the by the purchaser in the event the development of power, notice shall warranty fails, such stipulation be given the Hart-Parr Company must be followed by the purchaser at their office at Charles City, Iowa, in order to enforce the warranty.". by registered letter or telegram, But the above rule is not applistating particularly wherein it fails cable to the facts in this case. The to fill the warranty, and reasonable testimony discloses that this engine time given said company to send a was brought to Duncan's place competent person to remedy the de- about the 18th day of June and put fects, if any there be; the purchas- to work by one of the Hart-Parr ers rendering necessary and friend- Company's experts, but failed to do ly assistance. If the engine cannot good work from the very beginbe made to develop the guaranteed ning; that the first expert remained power, it shall be returned by the with the engine from about June purchasers free of charge to the 18th until about June 27th, the enshippin point where received, and gine from the beginning and at all the payments made will be refund- times failing to give satisfaction. ed, and no further claim is to be After the first expert left, Duncan made on the company.

called up the company and informed "If the purchasers fail to make them that the engine was not workthe engine do satisfactory work ing satisfactorily, and was requestthrough improper management, in- ed by the company to try to get efficient operators, or neglect to ob- along with it until they could get a serve the printed or written direc-' man; that they had no available tions of the manufacturers, then man at that time, but would send the purchasers are to keep the en- one as soon as possible. The man gine, also to pay all necessary ex- came in about a week, and other penses incurred by any man sent at men came later; and they continued their request to put the engine in to try to make the engine run until condition for successful operation. about the 26th of September, hav

“It is further mutually under- ing spent more than two months in stood and agreed that the use of a vain endeavor to make it work, said engine after the expiration of and all this delay at the instance the six days named in the above and request of the company. warranty shall be conclusive evi- The company's expert set up the dence of the acceptance of the same, engine on the 18th of June, and con

, and full satisfaction to the under- tinued from then until the 27th day of June trying to make it run, but the engine was defective, and that he could not make it do satisfactory from the 18th of June to the 26th work, and, when the company was day of September this defective eninformed of this fact, it requested gine had been kept by Duncan to Duncan to get along with it until Duncan's material detriment, in another expert could be sent. Thus order to give the company opporthe failure to return the engine ac- tunity to make the engine work, if cording to the stipulation relied it could be made to do so, and that upon by the company was brought at the end of this time Duncan, about at the instance and request of having become thoroughly satisfied the company and for the benefit of that the engine was absolutely the company. In fact, it appears worthless and could not possibly be from this testimony that all the de- made to do satisfactory work, relay in failing to return the engine fused to grant any further delay, and ask for a rescission of the con- and notified the company that the tract was at the request of the com- engine was there; that it was out in pany and for the benefit of the his field ; that he was ready at any company. The company continued time to deliver it at Hollister, and to send experts to try to make the would do so upon the surrender by engine do satisfactory work for a the company of his notes. This the

. period of over two months, which company refused to do. Under delay was of no benefit whatever to these circumstances Duncan was Duncan. In fact, as the testimony not required to re

Trialshows, Duncan was materially dam- turn the engine at instructions aged by reason of the delay. The the station at which correctness. company was getting all the benefit it had been received, knowing that of the delay in the hope of ulti- the company would not receive it mately making this engine do the and had failed and refused to rework instead of having to take it turn his notes. See Young v. Blackback or replace it with another en- ert, 51 Okla. 285, 151 Pac. 1057; gine.

Barber Medicine Co. v. Bradley, 48 Under these circumstances there Okla. 82, 150 Pac. 127; Rawlings v. is no rule of law, at least none Ufer,

161 Pac. 183; recognized by this also J. I. Case Threshing Mach. Co. Sale-warranty -notice-condi. court, that would

v. Huber, 160 Mich. 92, 32 L.R.A. tion precedent. deny Duncan the

(N.S.) 212, 125 N. W. 66. benefit of the provision of war

Second proposition. Under this ranty, and force him to take a

proposition plaintiff in error conworthless engine and pay $2,785 tends that the court erred in refusfor it. It is contended also that no suf- 2, 3, and 4 requested by the com

ing to give requested instructions 1, ficient tender was made by Duncan.

pany. Under the evidence in this This contention is not supported by case the requested instructions the evidence. Even if a formal

were properly refused by the court tender was material, such conten- for the reason that they did not tion is not sustained by the evi- state the law applicable to the facts dence.

in the case. The requested instrucPlaintiff in error lays great stress tions referred to are drawn upon upon the fact that the engine at the the theory that the failure of Duntime suit was brought was upon can to return the engine after havDuncan's premises and in his pos- ing used it six days, as stipulated in session, and that the provision in the order, was due to Duncan's the contract was that the engine fault, when as a matter of fact it should be returned to the railroad

appears from the record that Dunstation at Hollister. But the testi- can's failure to return it at the end mony is that from the beginning of six days' use, and the prolonged the company had knowledge that delay in asking to be released from

Okla.

(- Okla. , 181 Pac. 288.) his notes, were due to the fault of hence no.'error to eliminate the the company.

question of "horse power" and subIt is also contended that the court mit to the jury the question alone erred in refusing to submit to the "as to whether the cooling device jury the question whether or not had fulfilled the warranty.” We tender had been made within a rea- think the instruction complained of sonable time. This contention like- was a substantially correct statewise is based upon the theory that ment of the law applicable to the the delay in making tender within issues involved. the time prescribed in the contract Fourth proposition. Under this was due to the fault of Duncan, proposition it is argued, citing a which failure, as we have hereto- number of authorities in support of fore observed, cannot be sustained such contention, that Duncan, havunder the record.

ing elected to sue for a breach of Third proposition. Under the warranty, could not thereafter ask third proposition it is contended for rescission of the contract, and that the court erred in its instruc- the court erred in submitting the tions to the jury. The argument in case to the jury on the question of this regard is based partly upon

rescission. As to whether this contwo theories: One, that Duncan

One, that Duncan tention should be sustained if plainhad failed to act promptly after the tiff in error's premise was correct, discovery of the defects or fraud, we do not feel called upon to deand that the failure to so act was cide; but the issues of fact presentdue to his own fault; and the other, ed by the pleadings were that the that the court had eliminated from company brought this suit upon the the case the question of "whether the notes, and asked for judgment for engine would develop the horse pow- the face value thereof with interest. er provided for in the warranty," The defendant answered, admitand submitted to the jury only one ting the execution of the notes, but question, “as to whether the cooling alleging that they were given in device had fulfilled the conditions of consideration of the machine and the warranty.” As has

As has already engine involved here; that the enbeen observed, the question as to gine was worthless, and therefore whether Duncan acted within a rea- the notes were given for no considsonable time was not a material eration. These facts, if true, would question in the case. Under the have entitled the defendant to a recircumstances, and under the un- scission of the contract. In addi

. disputed facts in the case, it was tion to these facts the defendant -refusal to sub

immaterial whether also alleged that, by reason of the mit immaterial the engine devel- worthlessness of the engine and by questions.

oped the horse pow- reason of the fact that a worthless er it was warranted to develop or engine had been sold to him, he had not, so long as the cooling device been damaged to the extent of the was so defective as to render the freight he had paid on the engine, entire engine worthless. If the which was $294, and that he had cooling device had done the part it been otherwise damaged in his enwas warranted to do, then the en- deavor to make the engine work, in gine might have developed the different amounts that he had paid horse power it was warranted to out, which sums would not have develop; but, inasmuch as the cool- been necessary to pay out if the ening device was so defective that the gine had worked satisfactorily, toengine became overheated and the gether with other items of damage cylinder warped and rendered use- which he alleged he sustained by less and worthless, it was imma- reason of the fact that the company terial, so far as this case is con- had sold him an engine that was of cerred, whether it would have de- no use to him. There is no inconveloped the horse power or not, and sistency in these causes of action.

of warranty -damages.

C

If the company had sold Duncan an the divisible contract does not enengine warranted to do good work, title the defendant to rescission as and, relying upon such warranty, to the other"-citing cases in supDuncan had executed his promis- port of this contention. sory notes, aggregating $2,785, and But the facts in the case do not the engine should prove worthless, support this theory. It appears -prove to be of no value whatever from the record that Duncan wrote to Duncan, and fail wholly to per- to the Hart-Parr Company at form the work it was purchased to Charles City, Iowa, telling them, in do,—the work it was warranted to substance, that he would be in the do,—then upon proof of such facts market for an engine, and requestDuncan would be entitled to release ing full information as to the kind from liability on the notes, and, in of an engine suitable to his needs, addition to that, if he had been ac- and all particulars in regard to tually damaged by reason of fraud what the company had called their perpetrated by the company in sell- "free trial offer." In reply to his ing him a worthless engine, then request Duncan received the follow

upon proof of such ing letter from the company at Sale-breach

damage he would be Charles City, Iowa, which appears

entitled to recover as exhibit A in the record, to wit: therefor. There is no inconsistency Mr. Joe T. Duncan, in the two causes of action. Phil

Route 1. lips v. Mitchell, Okla. 172

Hollister, Oklahoma. Pac. 85.

Dear Sir:Fifth proposition. Under this

Your favor just at hand, requestproposition it is argued that the ing full particulars about our free court erred in overruling the mo

trial offer, and telling us that you tion of plaintiff for judgment in its favor upon the two notes for the - and that you expect to do some road

are operating a half section of land, plows which were purchased with grading as well as the farm work, the engine.

with your tractor. This contention is based upon the

The free trial offer plan that has assumption that the purchase of

been recently put into force by our the plows constituted a separate

company makes it possible for paycontract, and despite the fact that

ing $1 down on the outfit, and also the plows and engine were pur. leaves it up to you to decide whether chased under separate and distinct

or not you can afford to continue contract, the failure of the engine doing your work with horses, and to come up to the warranty did not

do expensive farming, or whether relieve the defendant from liability you want to do cheaper farming, on the notes given for the plows, the Hart-Parr way. which had been purchased under We are building our tractors in separate contract.

several sizes, but for the half secPlaintiff in error in its brief says: tion farm we recommend our 27 “The mere fact that the two con- BHP tractor, and a set of our four tracts of purchase were made at the bottom self and half lift plows. same time and may have been part However, your conditions may be of the same transaction does not unusual, and there may be some prevent the contracts from being reasons why this tractor wouldn't divisible. A separate price was set be the best one for your work, so out for each, separate notes were we are asking you to fill out the ingiven for each article, and separate closed coupon, and mail it promptly orders were made for each. Even to our office at Wichita, Kansas, though the purchase was covered which office has charge of all our by one contract, yet, where sepa- business in your section. They are rate prices are given, the contract is familiar with your farming condidivisible, and a rescission of part of tions there and are in position to

.

We are,

(- Okla. 181 Pac. 288.) advise with you fully and complete - - would serve his purpose, and that ly as to which one of our rigs you the plows in question were the kind ought to have on your farm.

of plows he needed for his particThey will take the matter up with ular purpose. Duncan needed the you at once, and quote you our engine for the plows and needed the prices and terms, and explain to you plows for the engine. He had a cerfully all about this free trial offer tain work to be done; he had no use plan, the plan that makes it easy for for either without the other, and no you to try out a Hart-Parr oil trac- use for either unless both would tor to your own satisfaction on your work satisfactorily. Thompson led own farm and find out whether or him to believe that they were just not it would do the business for you. what he needed, and upon Thomp

.

son's representations he bought the Yours very truly,

plows and engine with which to do Sales Department,

his plowing. It was all one conHart-Parr Company, tract, all one purchase. The fact

By D. C. Hull. that the plow was ordered on one It is observed that the above let

blank and the engine on another, ter plainly and definitely tells Dun- and that separate notes were given can that the Wichita office has

for each, did not render it a sepcharge of all the Hart-Parr business arable or divisible contract, or in Duncan's section of the country,

make it two distinct contracts. and that the Wichita office would The plows which were suited to advise him as to what was best this engine were priced at a certain suited to his needs; and, following figure, and the engine that was these instructions from the com

suited to the plows was priced at a pany, Duncan wrote the Wichita of- certain figure, and Duncan upon a fice, the office which the company

certain date purchased them, all for said had charge of all its business in a specified price. The plows were Duncan's section. And, pursuant

And, pursuant kept in stock at the Wichita office to Duncan's letter to the Wichita of- and the engine kept in stock at the fice, a Mr. Thompson was sent by Charles City, Iowa, office; hence the the Wichita office to advise what he necessity of two separate order needed and to sell him what he

blanks to complete the one purneeded.

chase, which, in our opinion, in Under these circumstances Mr.

absence of other Thompson came to Duncan not evidence that the divisible merely as an agent with limited au

parties intended it thority, but as the authorized rep

to be divisible, constituted one inresentative of the Wichita house, divisible purchase contract. which had charge of all the com

The court, therefore, did not err pany's business in Duncan's section in refusing to direct judgment for of the country. Hence any repre

the company on the notes given for sentations made by Thompson were

the plows. representations made by the com

When the entire case is summed pany. Thompson was the

man

up, it amounts to this: that Duncan chosen by the company and sent hy

had a half section of land that he the company to tell Duncan just wanted to have plowed; he needed what he he needed. The company

the engine and plows to do it with; spoke through Thompson to Dun

he had no use for either without can, and the company is bound by both. Thompson was sent as the the representations which Thomp- representative of the company to son made for the company to Dun

tell Duncan what he needed and to can Hence the

company told

sell it to him. Relying on what Duncan, through Thompson, that Thompson said as to what he needthe engine in question was the kind ed, Duncan entered into a purchase of engine he needed, the kind that contract for the implements or in

4 A.L.R.-91.

contract.

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