230 N.W. 761 | S.D. | 1930
Action on notes given for the purchase price of a tractor and to foreclose chattel mortgage securing the notes. From a judgment on a directed verdict in favor of plaintiff, defendant appeals. Defendant gave a written order for the tractor which contained a warranty that the “machinery is warranted to be well made and of good material, and with proper use capable of doing as good work as any other machine of the same kind, size and rated capacity, working under like conditions.” The order also contained a clause that the purchaser should not be entitled to rely upon a breach of the above warranty or to rescind the contract or to any claim, or set-off unless notice of the breach was given by registered letter addressed to the vendor at its 'head office within four days after discovery thereof; and if the vendor failed to remedy the defect, the purchaser should immediately return the machine to the place from which, it was received, and give the vendor immediate notice of the return by registered letter mailed to the vendor at La Porte, Ind., and also to its branch office in the territory where the machinery was sold, whereupon money and security given by the purchaser on account of the purchase price should be returned and the vendor released from all further claim, and that such return.of goods “shall constitute the sole and exclusive remedy of the purchaser,” and failure to so return the goods shall operate as an acceptance of the goods and the fulfillment of-the warranty in every particular. The order contained the further stipulation that no warranty or conditions, other than those ex
•A number of letters made part of defendant’s offer of proof show that defendant is a man of at least a good education, and. he conducts farming operations on a large scale, and if it be conceded that he was entitled to rely upon the representations of the agent, who sold him the tractor, and was justified in signing the written order or contract without reading it, in reliance upon the supposition or belief that it contained all of the statements the agent had made in regard to the quality of the tractor, yet nevertheless it appears, from a letter that he wrote to plaintiff on August 12, 1926, that he had then read the contract, for in the letter he says, in regard to a request which plaintiff had made for the payment of one of the notes 'which was then due: “Will say that when you put your engine up in shape to comply with your contract or agreement this note will be paid. Up to this time you have failed to d’o so therefore I consider the engine to be your property. The part of the contract I have reference to is that your engine is to be well made, of good material, and with proper use capable of doing as good work as any other machine of same kind and rated capacity, working under like conditions.” It is clear from this letter that at this time plaintiff had read the contract and was familiar with its terms. He did not repudiate the written contract then, nor did he then make any claim that his signature had been induced by fraudulent representations of plaintiff’s agent. Instead, he claimed to stand upon the written contract, and said that when plaintiff made the tractor comply with that contract he would pay the note. But the terms of this contract required him, if the tractor did not come up to the warranty therein contained, and after notice thereof was not made to comply with the warranty, to return it to Gettysburg, S. D.; that being the place where he received it. This he did not do, but instead offered to prove that he had written plain
The judgment and order appealed from are affirmed.