Wisner v. Reeside

²²² Urner, J., delivered tlie opinion of the Court. On June 28th, 1920, the appellee ordered from the appellants a Rainer motor truck for the price of $1,450, of which the sum of $50 was paid on the day of the purchase, $200 was to be paid at the time of the delivery of the truck three days later, $800 on July 15th following, and for the $400 balance the appellants were to accept a Ford motor truck from the appellee at that valuation. The Rainer truck was delivered to the appellee on July 1st, and the Ford truck and the $200 payment were then received by the appellants in partial settlement. For the residue of the purchase price the appellee signed-a promissory note for $800, payable on July loth, and containing' a power of attorney for the confession of a judgment for the amount of the principal and interest and ten per cent, additional as attorney’s fees.

Two days after the Rainer truck was delivered to the appellee, it was taken by the appellants to their garage for repairs on account of serious difficulty in its operation, resulting from cracks which had been discovered in the motor. The Ford truck was returned to the appellee for his use while the other truck was being repaired. Within the following week the Rainer truck was ready for delivery to him again, but he refused to receive it, as he claimed that it was not a new truck, which it was represented to be at the time of the purchase, but was an old or used truck, with a gasoline tank of smaller capacity than that contracted for, and with a broken motor, which had not been fully repaired when the truck was offered to be returned to his possession. This contention was met by the appellants’ assertion that the truck as delivered in the first instance was in good condition and conformed to the specifications and warranty contained in the agreement of purchase, that the cracks in the motor must have been caused by the negligence of the appellee, or his agents, in pouring cold water into1 the radiator while the engine was heated, and that the appellants repaired the cracks thus produced. ²²³ The parties were in this state of disagreement when the note for $800 matured, and the appellants, six days later, caused a judgment by confession to be entered, under the power conferred by the note, for the principal, interest