Scott v. Geiser Manufacturing Co. , 70 Kan. 498 ( 1904 )

The opinion of the court was delivered by

Johnston, C. J. :

Adolphus Scott, H. G. Scott and Fannie Scott gave several promissory notes to C. A. Benbow for a second-hand thrashing-machine, and at' the same time executed a mortgage upon some land to secure the payment of these notes. Before the maturity of the notes two of them were indorsed and transferred to the Geiser Manufacturing Company, and one of them to the Parsons Band-cutter and Self-feeder Company. The notes were not paid when due, and the Geiser Manufacturing Company brought an action against the Scotts to recover on the notes held by the company, and for a foreclosure of the mortgage. The Parsons Band-cutter and Self-feeder Company was made a defendant because it claimed, an interest in the mortgage. The latter company filed an answer and cross-petition setting up the note held by it, upon which it asked judgment, and also asserted a right to share in the security. The Scotts answered admitting the execution of the notes and mortgage, but alleged that the machine purchased by them was defective in several particulars and not up to the representation and warranty made when it was sold by Benbow to them. The answer also denied generally the allegations of the petition not admitted in their answer.

At the trial the Scotts undertook to prove that the thrashing-machine was not as warranted.by Benbow, and to counter-claim in damages for the breach of the warranty against the indorsees of the notes; but after the evidence was introduced a demurrer thereto was sustained and judgment given against them. The ruling was correct. In the petition it was alleged that the notes were indorsed by Benbow to the present holders before maturity, and copies of the notes together with' written indorsements thereon were set forth. There was no verified denial of the allegation as to the indorsement of the notes, and there was no effort to prove that the indorsements were made after the maturity of the notes. The written indorsements on the back of the notes were without date, it is true, but “where there is no evidence as to the date of an indorsement, the presumption of law is, that it was made before maturity, and that the holder is a bona fide holder for value.” (Rahm v. Bridge Manufactory, 16 Kan. 530; Lyon v. Martin, 31 id. 411, 2 Pac. 790; National Bank v. Elliott, 46 id. 32, 26 Pac. 487.) It must be held, therefore, that the indorsees of the notes took them discharged of all equities between the original parties, and that the defense of a breach of warranty, alleged to have been made by Benbow, was not available to the Scotts.

(80 Pac. 955.) SYLLABUS BY THE COURT. 1. Warranty — Limitation. Ordinarily a general warranty of condition does not cover defects which are plain and obvious to the purchaser, or are at the time known to him. 2. - Obvious Defects Not Included. Representations as to the condition of a second-hand thrashing-machine known to he defective, made to a purchaser who is experienced in handling such machines and competent to repair them, and who actually did repair the machine sold for the seller and thus learned its condition before accepting it, impose no liability on the seller for breach of warranty, since an obvious defect known to the parties when the general warranty was given is not deemed to be included in it.

No error was committed in sustaining the demurrer to defendant’s evidence, and the judgment is affirmed.

All the Justices concurring.