Lee v. Neumen

Citations

• 15 S.D. 642
• 91 N.W. 320
• 1902 S.D. LEXIS 63

Syllabus

<p>1. A certificate, executed by a buyer of machinery warranted to do a certain amount of work that the machinery was working satisfactorily up to date, did not preclude him from thereafter showing that he was mistaken, and that the machinery did not, in fact, comply with the warranty.</p> <p>2. Where a buyer of warranted machinery, under an agreement stipulating that six days’ possession and use of the machinery should be conclusive evidence that it complied with the warranty, kept and used such machinery six days, it was competent for an assignee of the purchase money notes and the mortgage given to secure them to waive such stipulation, and agree to take back the machinery if it did not comply with the warranty.</p> <p>3. Where, in an action of claim and delivery for the possession of machinery and other personal property claimed by plaintiff under a mortgage given by defendant to secure- the price of the machinery, it appeared that defendant was entitled to rescind the sale for breach of warranty, and, further, that he had not refused to surrender the machinery to plaintiff upon his demand at or about the time of the institution of the suit, costs were properly awarded against plaintiff.</p> <p>Fuller, J., dissenting.</p>