Lyman v. Wederski

Citations

• 95 Kan. 438
• 148 P. 642
• 1915 Kan. LEXIS 233

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1.-Sale — Header—Action on Renewal Note — Breach of Warranty — Failure of Consideration — Demurrer to Evidence Rightly Sustained. In an action on a promissory note given in renewal of a former note for the purchase price of a header the defense was a breach of warranty and failure of consideration. The defendants’ evidence showed that the machine was defective and failed to give satisfaction from the first time it was tried, but that after using it through one harvest they made payments on the original note, and after using it the second season executed a renewal note and continued to use the machine for two more seasons and still retained it in their possession. There was no evidence of an express warranty nor proof to show what, if any, damages the defendants sustained by reason of the defect in the machine. Held, that a demurrer to the evidence was rightly sustained.</p> <p>2. Same — Defendants Had Election of Two Remedies. The defendants had the election of one of two remedies: either to return the machine and rescind the contract, or keep the machine, affirm the contract and either sue for damages for a breach of warranty, if there was a warranty, or when sued for the purchase price recoup any damages sustained by a breach of warranty.</p>