Advance Rumely Thresher Co. v. McCoy

THE COURT.

This is an appeal from a judgment in favor of the defendant on his cross-complaint in an action to recover on two promissory notes given to secure payment of the purchase price of two 16-foot cut Hillside combined harvesters delivered to the defendant by the plaintiff. The defendant by answer denied the indebtedness and by cross-complaint sought to have the notes canceled on the ground of fraud and deception, alleged a cause of action based on breach of warranty, and prayed for a judgment of rescission and damages.

The defendant is the owner of a large acreage of farm land near Helm in Fresno County, on which is raised principally wheat and barley. During March, 1927, the local agents of the plaintiff, which has its factory and principal office at La Porte, Indiana, opened negotiations with J. E. O’Neill, the defendant’s representative at Helm, for the sale to the defendant of Rumely harvesters. After the plaintiff’s agents had looked over the defendant’s acreage and after further conferences, on March 28, 1927, the defendant signed a printed order for two harvesters of the type described. In the printed form of order, signed by the defendant, there was inserted the sentence: “These machines are guaranteed to give complete and efficient service under existing conditions in this locality.” The order contained the further provisions that the machinery is warranted to be

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well made and of good material, and with proper use capable of doing as good work as any other machine of the same kind, size and rated capacity, working under like conditions; that the machines are guaranteed against all defects in material or workmanship and such defects shall be repaired free of charge for the year 1927, and that the vendor will carry adequate supply of repair parts with the dealer. There was also the provision that the “purchaser shall not be entitled to rely upon any breach of above warranty or to rescind this contract or to any claim or set-off against the vendor because of any breach, unless: (a) Notice of the defect or breach, particularly describing the same and specifying the time of discovery thereof, is given by registered letter addressed to vendor at its head office, posted within four days after such discovery; (b) such defect appears within ten (10) days after the first use of the goods; (c) the vendor fails to remedy such defect or breach by substitution of parts or otherwise within a reasonable time after receipt of such notice, which substitution it shall have the right to make. Purchaser shall render necessary and friendly assistance to vendor in and about remedying the defect. If vendor fails to remedy the defect purchaser shall have the right immediately to return the defective goods or parts in as good condition as where received by him to the place from which they were received and shall thereafter give vendor immediate written notice of such return by a registered letter addressed and mailed to vendor at its head office.” The contract also contained the provision that there are no representations, warranties or conditions, express or implied, statutory or otherwise, except those contained in the written agreement.