Carver Gin & Machine Co. v. Gaddy

Citations

• 62 Miss. 201

Syllabus

<p>1. Breach oe Warranty. Defense to action on promissory note. Extent of recovery. Case in judgment.</p> <p>A gin company sold a cotton gin to Gaddy, with warranty as to quantity and quality of work it would do, and took his promissory note of two hundred dollars for the price thereof. Gaddy, after trying it, became dissatisfied with the gin and notified the company that he held it subject to their order; but he continued to use it, and thereafter ginned about one hundred and fifty bales of cotton with it. He was sued on his note and resisted payment on the ground of a breach of warranty and failure of consideration. Held, that the gin company is entitled to recover the actual value of the gin.</p> <p>2. Same. Rescission of contract. Notice thereof counteracted.</p> <p>If Gaddy intended to rescind his contract of'purchase of the gin, in the case above stated, it was his duty to return the gin within a reasonable time after discovering the alleged breach of warranty; and his use of it, after giving notice that he held it subject to the company’s order, was in effect a withdrawal of such notice.</p> <p>3. Same. Time allowed to test warrcmty. Duty of warrantee. Instructions.</p> <p>An instruction in the above-stated case, to the effect that if Gaddy did not offer to return the gin till he had used it during “ a season, or a part of a season,” then he is liable for its value, is erroneous in not allowing a reasonable time for trying the gin. And, on the other hand, an instruction to the effect that if there was a breach of the warranty the consideration of the note had failed and there could be no recovery (there being no reference to a return of the gin or its use after the breach of warranty) is also erroneous.</p>