
    Kansas Manufacturing Company v. O. H. Lumry et al.
    Filed January 18, 1893.
    No. 4663.
    Guaranty: Evidence: Review. The questions of fact were submitted to the jury upon the various phases of the proof, and there is no error in the record.
    
      Error from the district court of Nance county. Tried below before Marshall, J.
    
      Lamb, Ricketts & Wilson, for plaintiff in error.
    
      Meildejohn & Thompson, contra.
    
   Maxwell, Ch. J.

This action was brought in the district court of Nance county to recover from the defendants the sum of $100, with interest from the 15th day of January, 1887, the action being based on the guarantee by the defendants in error of the payment of a certain promissory note, executed by one J. A. Johnson, of the date of January 1, 1887. The defense is based on the alleged fact that the note was given for the purchase of a certain wagon by Johnson from the plaintiff. That the plaintiff warranted the wagon as follows:

“We warrant all of the spring wagons of our manufacture for the period of one year from the date of their purchase as follows: That they are well made in every part and of good material; that their strength is sufficient, with fair and reasonable usage, to carry as stated in this catalogue, and for breakage or failure on account of poor workmanship, or defect in material, we agree to make good all reasonable.charges in the following manner: We will either furnish the broken or defective part at our factory or nearest agency, or we will pay for the new parts at the price stated in our price list of repairs, less the trade discount. No claim will be considered under this warranty unless the same be presented to us within one year from the purchase of the wagon.

“Kansas Manufacturing Company.”

The evidence shows the sale, the warranty, and the defect, and that the plaintiff was notified, and to remedy the defect had forwarded a new axle and a new wheel, which failed to remedy the defect when applied; that the sale was made about the 13th of August, 1886; that the defendants procured the return of the wagon to their place of business about the 15th of November, 1888, and thereafter shipped it to the plaintiff at Leavenworth, Kansas; that the plaintiff refused to receive it, and brought suit on. the guaranty. The case was tried at the March, 1890, term of the district court, and resulted in a judgment against the plaintiff for costs. One Jackson, an employe of the defendants in error, testifies in effect that one Townsend, the general agent of the plaintiff, in November, 1888, instructed him to notify the defendants to return the wagon to the plaintiff, and he gave the notice as requested, and the wagon was thereupon returned. Townsend denies that he instructed Jackson to so inform the defendants, but that he gave him the following:

“Fullerton, Neb., 11-15, 1888.

“Ms. Lumry Bros.: I wish you would ship the spring wagoiy wheel and axle back to our factory,ship via U. P. Ry., and mark B-L ‘For repairs.’ ' That will entitle us to rate. Please ship as soon as possible and oblige, Truly yours, C. Townsend.”

It seems to be admitted by Jackson that he received the written notice, but he testifies that he received the oral instructions as well; that he communicated the same to the defendants and they acted upon them and returned the, wagon to the plaintiff. This testimony was proper to submit to the jury, and the instructions seem to conform to the various phases of the proof; and the jury having found against the plaintiff, it is difficult to see upon what ground the verdict can be set aside.

Affirmed.

The other judges concur.  