Kutner-Goldstein Co. v. Workman

BARNARD, P. J.

In April, 1926, the plaintiff sold to the defendant a new grain binder and engine, which proved defective during the ensuing harvesting season. A new contract was entered into in writing between the parties on the twenty-fourth day of August, 1926, providing for the sale of the binder and engine to the defendant for $515, $104 of which was paid in cash, and the defendant agreed to pay the balance of $411 on June 15, 1927. At the same

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time the plaintiff signed and delivered to the defendant a letter reading as follows:

“Relative to grain binder, as per contract signed today, this is to advise that we will, at our, expense, put same in and turn same over to you in satisfactory working condition, within a reasonable time.”

At that time the defendant had completed the harvest of all of his crops for the year 1926, and it is admitted that he had no use for the binder until the harvesting season of 1927. On January 13, 1927, the plaintiff wrote to the defendant as follows:

“Regarding the binder there is nothing we can do until about the time you are ready to use this, and if you will give us a few weeks notice we will then proceed to get same in first class working condition.”

The defendant testified that he did not recall getting this letter, but that he might have gotten it. On or about May 10, 1927, an employee of the plaintiff, with a representative of the company that manufactures the binder, went to the defendant’s ranch for the purpoe of putting the binder in condition. The record shows that the defendant told these visitors that the big portion of his grain was then too ripe to cut with a binder; that he couldn’t accept the machine; and that he did not want it. The visitors left without fixing the binder, and on June 10, 1927, the defendant served upon the plaintiff a written notice of rescission of the contract. On June 17, 1927, the plaintiff brought this action to recover the balance due, according to the contract. In his answer, the defendant set up the defense that the plaintiff had not complied with its agreement, in that it had not repaired the binder as agreed, and that he had rescinded the contract, and a return of the $104 already paid was prayed for. The action was tried before the court without a jury. The court found that the binder and engine were not in working condition, but that the plaintiff had agreed to put the same into satisfactory working condition; that on or about the tenth day of May, 1927, the plaintiff sent employees to the defendant’s ranch to properly repair the binder and engine; that at that time the defendant told these employees that he would refuse to accept the binder and engine, even if the same were put in good condition and properly repaired; that as a consequence of the refusal of