
    The Aultman & Taylor Machinery Company v. J. L. Wier et al.
    
    No. 12,479.
    ( 74 Pac. 227.)
    SYLLABUS BY THE COURT.
    1. Summons— Omission of Signature of Cleric. The omission of the signature of the clerk from a summons otherwise regular does . not render the process void, and the defect may be corrected by amendment.
    2. Warranty — Case Followed. The case of Furneaux v. Fsterly & Son, 36 Kan. 539, 13 Pac. 824, approved and followed.
    3. Jury and Jurors — Verdict Based on Wrong Theory. A special finding which clearly shows that the jury must have based their general verdict upon a theory of the case radically different from 'that contended for by the prevailing party, and not involved in the issues submitted for their determination, will authorize a reversal of the judgment.
    Error from Linn .district court; W. L. Simons, judge.
    Opinion filed November 7, 1903.
    Reversed.
    
      J. V. Donaldson, Bossington, Smith & Histed, and J. W. Newell, for plaintiff in error.
    
      Snoddy & Snoddy, for defendants in error.
   The opinion of the court was delivered by

Mason, J.:

The Aultman & Taylor Machinery Company sold thrashing machinery to J. L. Wier, receiving in payment notes secured by a chattel mortgage on it and other property. The first note not being paid at maturity, the company took possession of the machinery, sold it at public sale, applying the proceeds on the mortgage debt, and brought replevin for the remainder of the mortgaged property. Wier defended on the ground of lack of consideration through failure of the machinery properly to do the work for which it was intended, claiming a rescission of the contract of sale. A verdict was returned for the defendant, on which judgment was rendered, and to reverse it this proceeding is brought.

A preliminary question is presented by an objection by defendant in error to the jurisdiction of this court because the summons in error, otherwise regular in form, was not signed by the clerk. Plaintiff in error has asked leave to have the summons in error amended by the addition of such signature. The question is thus presented whether a summons in error lacking the clerk’s signature is absolutely void, or merely irregular and therefore amendable. The statute (Gen. Stat. 1901 §4489)provides that a summons “shall be under the seal of the court from which the same shall issue, shall be signed by the clerk, and shall be dated the day it is issued,” and (§ 5028) that a summons in error “shall issue and be served . . . as in the commencement of an action.” The constitution contains no requirement that process be signed by the clerk but does provide (Art. 3, § 1) that “all courts of record shall have a seal to be used in the authentication of all process.” In other jurisdictions, under statutes substantially similar, the question has frequently arisen and the decisions are conflicting. (40 Cent. Dig. 2795-2797.) The case of Sharman v. Huot, 20 Mont. 555, 52 Pac. 558, 63 Am. St. Rep. 645, is a recent well-considered case holding a summons issued without the clerk’s signature to be absolutely void and incapable of amendment. Perhaps the most complete discussion of the question in any reported case is found in Ambler, Trustee v. Leach et al., 15 W. Va. 677, where, after an exhaustive review" of the authorities, a contrary conclusion was reached. In Alderson on Judicial Writs and Process, after an enumeration of the decisions on each side of the question ( §§ 39,' 40), the author says :

“Reason and the weight of the authorities are in favor of the proposition that process, otherwise in form, is not void because not signed by the clerk. This is but the enforcement of the doctrine that the' law favors substance rather than form, and will not deny substantial right to the citizen because of the misprision of an officer of state. The author is entirely satisfied to assert that an unsigned writ is voidable only, and the subject of amendment.” (§40.)

In this state it has been held that process issued without the seal of the courtis utterly void, by reason of the constitutional provision already referred to (Gordon v. Bodwell, 59 Kan. 51, 51 Pac. 906, 68 Am. St. Rep. 341), but that an execution bearing the seal of the court, although lacking the signature of the clerk, is irregular only and may be amended after its return, the proceedings had under it being thereby validated. (Taylor v. Buck, 61 Kan. 694, 60 Pac. 736, 78 Am. St. Rep. 346.) It remains only to inquire whether the rule should be the same in the case of initial, as of final, process. It has often been held that a stricter conformity to the statute is exacted in original than in any later process, but the conflicting decisions referred to cannot be reconciled upon this principle since relatively few of them turn upon it. In Lindsay v. Comm’rs. of Kearny Co., 56 Kan. 630, 44 Pac. 603, it was held that a summons lacking the clerk’s signature should be quashed on motion, but in the opinion it was noted that the summons was attacked directly and- not collaterally, the question presented being merely whether it was error to overrule the motion ; and in Taylor v. Buck, supra, it was said that the question whether such kind of writ was amendable was not presented in the earlier case, and therefore was not determined.

Since in this state the question is an open one, and elsewhere the authorities are divided upon it, we prefer to hold, as conforming to the spirit of the code and of modern practice, that the summons in this case was not void but merely irregular. There is nothing in the objection made that affects any substantial right of the parties. In Truitt v. Baird, 12 Kan. 420, it was held that if the summons in that case did not run in the name of the state, as required by the constitution, the defect was purely technical and might be disregarded. In some of the cases cited the courts have discussed with little profit the question whether the signature of the clerk authenticates the seal or the seal authenticates the signature. There is no room for invoking any such consideration here, since the constitution provides that the seal itself authenticates the writ. The signature is a mere formal requirement of the statute. The application of plaintiff in error for leave to have the summons in error amended by the addition of the clerk’s signature will be allowed, the amendment will be considered made, and the court will take jurisdiction of the case upon the merits.

The rights of the parties are to be determined in the light of a written contract or order executed at the time of the sale. Defendant denied that the sale was made under this instrument but as the jury found against him on this point the question for the present purposes is no longer open. The contract, among other provisions, including various warranties of the efficiency of the machinery, contained the following :

‘ ‘ If within six days from the date of its first use said machinery shall fail in any respect to fill this warranty, the undersigned purchasers having intelligently followed the printed hints, rules and directions of the manufacturers’ written notice by registered letter shall at once, and within six days from the date of its first use as aforesaid, be given by the purchasers to the Aultman & Taylor Machinery Company, at their home office, Mansfield, Ohio, stating particularly what machine fails to fill the warranty and wherein, and if it be of such a nature that a remedy cannot be suggested by letter, reasonable time must be allowed the company to get to the machine with skilled workmen and remedy the defect, the purchasers agreeing to provide every facility for favorable operation and to render all necessary and friendly assistance and cooperation in making the machinery a practical success. It is also agreed that if a mechanical expert or other employee of the company visits said machinery in response to the notice above provided and leaves it working unsatisfactorily, the purchasers agree to give immediate notice by registered letter or prepaid telegram to the Aultman & Taylor Machinery Company, at Mansfield, Ohio, stating specifically any failure or neglect complained of and allow time for another expert to be sent to operate the machine. The foregoing notices to the Aultman & Taylor Machinery Company shall also be given even though the local agent or any other agent or employee of the company may be present and assist.'in setting up and starting the machinery at the time ,of its first use as aforesaid.”

The defendant was dissatisfied with the working of the machinery, claimed that it failed to accomplish its purpose or to fulfill the warranties, and complained to the agent of the company through whom the sale was made, one A. G. Copeland. On several occasions agents and machinists visited the machinery, made suggestions as to operating it, changed adjustments and furnished new parts. These persons, however, were either under the direction of the selling agent or of an office in Kansas City, the character of which was not defined in the evidence. To the question whether defendant had ever given written notice of defects in the machinery .to the plaintiff company at its home or Mansfield office, the jury answered: “No, but he did notify their agent, A. G. Copeland, at La Cygne, Kan., so that the Aultman & Taylor Machinery Co. did receive notice that the machine was not filling the warranty.” The question was also asked whether defendant had given written‘notice to the company at the Mansfield office that any mechanical expert or employee of the company who visited the machinery had left it in an unsatisfactory condition. The jury answered : “Yes,by letters sentfrom La Cygne, Kan., to the Kansas City office, some time in September, 1898, to the best of our knowledge.” The evidence leaves the character of the agency of A. G. Copeland beyond doubt. His authority was derived entirely from a written instrument, -which showed that he was not a general agent. Nor can it be contended that he had even apparent authority to waive any of the conditions of the contract of sale, which contained this provision:

“No agent, salesman or mechanical expert has any authority to add to, abridge or change any of the above warranties, nor to waive any of the terms or conditions of this contract, notice of failures or defects or of a return of the machine under the terms of these warranties or contract. Local agents, canvassers and traveling salesmen have no general agency powers, and are authorized only to make sales in accordance with special instructions upon forms furnished by the Company.”

Mere notice to Copeland was not sufficient to bind the company, and we find no support in the evidence for the finding that the company received actual notice through him. Nor in such- examination of the record as we have been able to make do we find any evidence that the Kansas City office constituted a general agency, or had control of the Kansas business of the company, or even that defendant sent any notice to the Kansas City office. No brief on the merits has been filed by defendant in error and our attention is not called to anything in the evidence (which covers over 350 pages) in support of the -findings in this regard. We conclude that such evidence is lacking. These considerations bring the case within the rule announced in Furneaux v. Esterly & Son, 36 Kan. 539, 13 Pac. 824, the syllabus of which reads:

“Where a machine is sold upon a conditional warranty which expressly provides that the purchaser shall have a certain time in which to test the machine, and if it fails to fulfill the warranty, the purchaser shall give the seller written notice stating wherein it fails, held, that to avail himself of the benefits of the warranty the purchaser must render substantial compliance with the agreement; and that if ho written or actual notice was given, and there was no waiver of the condition, the warranty cannot be enforced against the seller.
“Where a contract of warranty, which is executed in duplicate and one of which is retained by each of the parties, contains a provision that no agent has authority to change the warranty, it is a notice to the purchaser of a limitation upon the authority of the agents of the seller; and that they cannot waive or dispense with an express condition of the contract.”

This conclusion does not in the least conflict with the doctrine of Machine Co. v. Mann, 42 Kan. 372, 22 Pac. 417, where notice was given to an agent who had authority to sell machines and receive those which should be returned to him as unsatisfactory, and refund what might have been paid upon them. A recent case in point is Case Thrashing Machine Co. v. Ebbighausen, 11 N. D. 466, 92 N. W. 826, 69 L. R. A. 733. See, also, Fahey v. Esterley Machine Company, 3 N. D. 220, 55 N. W. 580, 44 Am. St. Rep. 554.

Another finding of the jury would require a reversal of the case. To the question, ‘‘What amount do you deduct from the notes, principal and interest, on account of the thrashing outfit and machinery taken by plaintiff from the defendant J. L. Wier?” they answered “$471.50.” This property was sold, as the 'jury elsewhere found, for $600, and there is no apparent explanation of this reply. The variation of the amount would of itself be unimportant, but the answer shows that the jury regarded the notes as in force and not as canceled by the rescission of the contract. They therefore must have reached their verdict by considering the notes as valid, but allowing defendant credit on account of damages sustained by breach of warranties sufficient to offset the balance otherwise due upon them. This was an issue not submitted to them and a verdict for defendant on such theory cannot be upheld.

It is also contended by plaintiff in error that the fact that defendant kept and used the machinery for some four months was conclusive against him. Whether this was an unreasonable time under all the circumstances was a question of fact, which.the court 'properly submitted to the jury.

The judgment is reversed and the case remanded for further proceedings in accordance with this opinion.

All the Justices concurring.  