Eppler v. Roberts

Citations

• 91 Kan. 676
• 139 P. 384
• 1914 Kan. LEXIS 100

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale — Gang Plow — Note Given — Compound Defenses — Neither Defense Proven — No Prejudicial Etror in Instructions. In an action on a note given for the price of a gang plow the defendant not only joined but compounded defenses of false representations and breach of warranty. In portions of the charge to the jury the court followed the language of the answer. The defense of false representations was eliminated by the defendant’s own testimony that he was not to keep the plow unless it responded to a test which he made, and the defense of breach of warranty was submitted to the jury who-found specially that no warranty had been given. Held, the defendant was not prejudiced.</p> <p>2. Same — Instructions as to Warranty. The court instructed the jury that in order to find the plaintiff liable on a warranty they must find that he made statements amounting to a warranty, the character of which was properly indicated. and then that they should find certain other things. Held, the special finding of the jury that no warranty was given rendered the latter part of the instruction harmless.</p> <p>3. Same — Instructions Not Prejudicial. Other instructions to the jury considered and held to be without prejudice to the defendant.</p> <p>4. Same — Expressions of Opinion — Not Warranties. Admitted statements made by the plaintiff, in connection with the sale of the plow considered, and held, that the jury had the right to interpret them as expressions of opinion and not as warranties.</p> <p>5. Same — Promissory Note — In Effect a Chattel Mortgage— Foreclosure. The plaintiff took a note for the price of the plow, containing provisions having the effect of a chattel mortgage. He assigned the note as collateral security. The assignee foreclosed the instrument and the plaintiff purchased the plow at the sale. Held, the burden did not rest on the plaintiff to show that, the sale was lawful and fair.</p>