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- Okla. 181 Pac. 288.) work, and, relying upon such warranty, contract because of the breach, he will the purchaser executes his promissory not be denied the right also to recover notes in payment thereof, and such the actual damages he has sustained by warranty is breached by the seller, and reason of the breach. the purchaser seeks a rescission of the [See 24 R. C. L. 256.]

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ERROR to the District Court for Tillman County (Wilson, Jr., J.) to review a judgment in favor of defendant on his counterclaim, and an order overruling a motion for new trial, in an action brought to recover the amount alleged to be due on certain promissory notes. Affirmed.

The facts are stated in the opinion of the court. Messrs. Mounts & Davis, Chester 1. Northwestern Dairy Co. 55 Wash. 665, Long, and Austin M. Cowan, for plain 104 Pac. 1123; C. Aultman & Co. v. Mctiff in error:

Kinney, - Tex. Civ. App. 26 S. W. Where machinery or any property is 267; Thomas Mfg. Co. v. Griffin, 16 bought under a written contract, and Tex. Civ. App. 188, 40 S. W. 755; J. I. the manner by which the sale may be Case Threshing Mach. Co. v. Hall, 32 rescinded is provided in the contract, Tex. Civ. App. 214, 73 S. W. 835. the vendee is bound to comply with the Having once elected to sue for damterms of said contract or show a waiver ages for breach of warranty, defendant of the provisions by the vendor.

could not afterwards change his posiMiller v. Mickel, 9 Colo. 331, 21 Pac. tion and seek to rescind. 240, 15 Mor. Min. Rep. 355; Merriman Luger Furniture Co. v. Street, 6 'v. Anselment, 86 Minn. 6, 89 N. W. Okla. 312, 50 Pac. 125; Blake-Ruther1125; Rowell v. Oleson, 32 Minn. 288, ford Farms Co. v. Holt Mfg. Co. 70 20 N. W. 227; Updegrove v. Gould Bal Wash. 192, 126 Pac. 418; Robb v. Vos, ance Valve Co. 57 Okla. 245, 156 Pac. 155 U. S. 13, 39 L. ed. 52, 15 Sup. Ct. 684; Hope v. Peck, 38 Okla. 531, 134 Rep. 4; Sweet v. Montpelier Sav. Bank Pac. 33; Scott v. Vulcan Iron Works & T. Co. 69 Kan. 641, 77 Pac. 538; KanCo. 31 Okla. 344, 122 Pac. 186; King v. sas City Live Stock Commission Co. v. Towsley, 64 Iowa, 75, 19 N. W. 859; Bank of Hamlin, 79 Kan. 763, 24 L.R.A. Dwelling-House Ins. Co. v. Johnson, (N.S.) 490, 101 Pac. 617, 17 Ann. Cas. 47 Kan. 1, 27 Pac. 100.

956. Before a party is entitled to rescind Even though the purchase was cova contract he must, upon the discovery ered by the contract, yet where sepaof the fraud or breach of warranty, rate prices are given, the contract is diwithin a reasonable time, restore to the visible, and a rescission of part of the other party everything of value that he divisible contract does not entitle the has received therefrom, or must offer defendant to rescission as to the other. to restore the same.

Aultman & T. Co. v. Lawson, 100 Robinson v. Roberts, 20 Okla. 787, 95 Iowa, 569, 69 N. W. 865; Nichols & S. Pac. 246; Spaulding Mfg. Co. v. Holi Co. v. Wiedmann, 72 Minn. 344, 75 N. day, 32 Okla. 823, 124 Pac. 35.

W. 208, 76 N. W. 41; Nichols & S. Co. When a contract has been entered in v. Chase, 103 Wis. 570, 79 N. W. 772; to, and the manner of rescinding is pro

Westbrook v. Reeves, 133 Iowa, 655, vided in said contract, the remedy pro 111 N. W. 11; Northwest Thresher Co. vided is an exclusive one and must be v. Mehlhoff, 23 S. D. 476, 122 N. W. 428. followed by the parties thereto.

Messrs. Wilson & Roe, for defendScott v. Vulcan Iron Works Co. 31 ant in error: Okla. 344, 122 Pac. 186; King v. Tows Even if defendant had made such ley, 64 Iowa, 75, 19 N. W. 859.

an election as would estop him to ask Failing to notify plaintiff that the a rescission, plaintiff, in order to take engine failed to fulfil the warranty, advantage of same, would have had to and retaining the engine after six days' plead such an estoppel as an affirmative use, defendant was bound to accept the issue. same, and thereby waived all damages Fidelity Mut. L. Ins. Co. v. Dean, 57 against the company.

Okla, 84, 156 Pac. 304; Blakemore v. Minnesota Thresher Mfg. Co. v. Lin Johnson, 24 Okla. 544, 103 Pac. 554; coln, 4 N, D. 410, 61 N. W. 145; Mur Cooper v. Flesner, 24 Okla. 47, 23 phy v. Russell, 8 Idaho, 133, 67 Pac. L.R.A.(N.S.) 1180, 103 Pac, 1016, 20 421; Furneaux v. Esterly, 36 Kan. 539, Ann. Cas. 29; Tonkawa Mill. Co. v. Ton13 Pac. 824; Fred W. Wolf Co. v. kawa, 15 Okla. 672, 83 Pac. 915.

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When the tender or performance of er oil tractor engine and two sixan act is necessary to the establish- furrow disc plows, taking in payment of any right against another ment Duncan's five promissory party, such tender or offer to perform notes, aggregating $2,785, secured is waived or becomes unnecessary when it is reasonably certain that the offer

by mortgage on the engine and will be refused.

plows. Young v. Blackert, 51 Okla. 285, 151 The engine was warranted to do Pac. 1057; Barber Medicine Co. v. good work, but would not do so, and Bradley, 48 Okla. 82, 150 Pac. 127; could not be made to do so. Duncan Rawlings v. Ufer, Okla. 161 Pac. notified the Hart-Parr Company of 183; St. Louis & S. F. R. Co. v. Rich- such fact, and refused to pay the ards, 23 Okla. 256, 23 L.R.A.(N.S.)

notes because of the worthlessness 1032, 102 Pac. 92; Creek Land & Improv. Co. v. Davis, 28 Okla. 579, 115

of the engine, whereupon the HartPac. 468; Hills v. National Albany

Parr Company brought suit on the Exch. Bank, 105 U. S. 319, 26 L. ed.

notes. Duncan answered, denying 1052.

liability on the notes because of Whether defendant acted within rea- breach of warranty by the com sonable time in notifying plaintiff of pany, and also asked for affirmative the fact that he would not accept the machinery, and that it was at the plain- been caused by the company in sell

relief in damages alleged to have tiff's disposal, was, under the circum

ing him a defective engine. stances of the case, a question of law for the court.

The company replied to Duncan's Barber Medicine Co. v. Bradley, 48

answer, and the case was tried up. Okla. 82, 150 Pac. 127; Couch V.

on the issues thus formed, resulting O'Brien, 41 Okla. 76, 136 Pac. 1088; in a verdict and judgment releasing Luger Furniture Co. v. Street, 6 Okla. Duncan from liability on the notes, 312, 50 Pac. 125.

and giving him damages in the sum Although the terms of a written ob- of $294.68, the amount paid by him ligation, assumed to be valid, cannot be

for freight on the engine. varied by parol, it may be shown by

From such judgment and order parol what caused the party thus to

overruling motion for new trial the obligate himself, and thereby test the question whether he is legally bound,

Hart-Parr Company appeals upon as the writing imports, or whether he 15 specific assignments of errors, is by any cause wholly or partially including the assignment that the freed from any liability thereon. court erred in overruling motion for

Rice v. Rice, 101 Kan. 20, 165 Pac. new trial, which motion itself con799; Mt. Hope Nurseries Co. v. Jack

tained 14 grounds for a new trial. son, 36 Okla. 273, 45 L.R.A.(N.S.) 243,

The entire assignment of errors, 128 Pac. 250; Port Huron Mach. Co. v.

however, is presented and argued in Davis, Iowa, —,162 N. W. 228. The covenants of an entire contract

the plaintiff in error's brief under are, of course, material and dependent,

the following topics: and covenants are to be considered de- (1) The question of tender. pendent or independent, according to (2) A refusal to give requested the intention of the parties.

instructions. Davidson v. Gaskill, 32 Okla. 40, 38

(3) Errors in the instructions L.R.A.(N.S.) 692, 121 Pac. 649; Dun

given by the court. v. T. J. Cannon Co. 51 Okla. 382, 151 Pac. 1167; Meek v. Daugherty, 21 Okla.

(4) The defendant not entitled 859, 97 Pac. 557.

to rescind.

(5) Errors in the verdict and Harrison, J., delivered the opin- judgment in releasing defendant ion of the court:

from liability on the notes given for The governing facts in this case the plows. are that in June, 1914, plaintiff in Under the first proposition it is error, the Hart-Parr Company, a contended by plaintiff in error that corporation of Charles City, Iowa, the defendant had not complied sold to defendant in error, Joseph with the provision of the contract T. Duncan, a certain 40 horse pow- as to tender of the engine, and was

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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 ine; 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 enshipping 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 conand full satisfaction to the under tinued from then until the 27th day

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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 reshows, Duncan was materially dam- turn the engine at instructionsaged by reason of the delay. The the station at which 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,

Ufer, - Okla. , 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. 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 worthless engine and pay $2,785 tends that the court erred in refus

proposition plaintiff in error confor 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

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

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(-- 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

en 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 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 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 addidisputed facts in the case, it was tion to these facts the defendant

immaterial whether also alleged that, by reason of the the engine devel worthlessness of the engine and by

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 verheated 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.

refusal to submit immaterial questions.

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