193 P. 752 | Mont. | 1920
delivered the opinion of the court.
The complaint herein consists of two causes of action. The first alleges the execution and delivery,, for a valuable consideration, by A. W. Terpening and Gertie M. Terpening, his wife, of certain promissory notes, aggregating the sum of
The answer admits all of' the allegations of the complaint and admits that plaintiff would be entitled to the relief sought were it not for the facts alleged in nine separate special defenses and counterclaims therein set out. These allege the purchase of the machinery mortgaged from plaintiff’s assignor by defendant A. W. Terpening, alleged to have been induced by knowingly false and fraudulent representations; total failure of consideration by reason thereof; breach of the warranties contained in the contracts of sale; the expenditure of $600 in an attempt to make the traction engine work; the payment of $1,200 on the purchase price notes described in the first cause of action, and $195 on those described in the second cause of action, and that the machinery purchased was wholly worthless. As a further separate defense defendants allege that the plaintiff took from their possession the separator and its attachments, and converted the same to its own use, and thereby abandoned its second cause of action. The answer closes with a prayer that plaintiff take nothing, and that defendants be awarded a decree of cancellation of the notes and mortgages, and judgment for the sum of $1,200.
Replying, the plaintiff admits the purchase of the property alleged in the answer, and denies all other allegations of the special defenses and counterclaims; sets up the signed order and agreement of purchase and contract of sale, showing the
On the day of the trial the defendants were permitted to make numerous amendments to their answer, among which we find the following: “The defendants allege that upon the breach of the warranty above set forth, they notified the * * * company thereof, and thereupon its agents and employees at various times attempted to remedy said defects, but were unable to do so; that they thereupon abandoned all attempts to make the engine comply with the warranties, and repossessed themselves of said engine and separator, with all attachments, and rescinded the contract of sale; that the defendants complied with all the provisions of said warranty as to which it was their duty to-do anything, and the failure, if any, on their part in this behalf was by reason of the facts above set forth, and the acts of the * * * company above alleged, waived by said company.”
The action seems to have been tried throughout by both the court and counsel, on the theory that it was an action at law, and resulted in a verdict for $1 in favor of the defendants on which judgment was entered for $1 and costs. The plaintiff has appealed from the judgment and an order denying its motion for a new trial.
On the trial the plaintiff introduced the notes and mortgages and evidence of the devolution of title thereto from the Burnley Products Company to itself, and rested.
1. At the opening of the defense, counsel for plaintiff moved
While it is difficult to ascertain just what position the defendants take in their nine separate defenses, it seems clear that they rely, first, on a rescission of, or the right to rescind, the contract and have the money which they had paid on the contract returned to them, by reason of the alleged failure of consideration; and, second, on their right to recover damages for a breach of warranty, and this is indicated even in the statement of the court in narrowing the issues, as above quoted. This being conceded, the court should have granted the motion and compelled the defendants to elect on which of the two defenses they would rely.
Although .it is permissible, under our procedure, to set forth [2, 3] inconsistent defenses, they must not be so inconsistent as to be incompatible. (Johnson v. Butte Copper Co., 41 Mont. 158, 48 L. R. A. (n. s.) 938, 108 Pac. 1057; Day v. Kelly, 50 Mont. 306, 146 Pac. 930; Chenoweth v. Great Northern Ry. Co., 50 Mont. 481, 148 Pac. 330.) The buyer may affirm the contract and sue for damages for the breach of warranty, or he may rescind the contract and sue for a recovery of the money paid; but he cannot insist that the contract has been rescinded and yet recover on the contract. (30 Am. & Eng. Ency. of Law, 2d ed., 199; Abraham, Bros. v. Browder, 114 Ala. 287, 21 South. 818; Osborne & Co. v. Poindexter (Tex. Civ. App.), 34 S. W. 299; Houser & Haines Co. v. McKay, 53 Wash. 337, 27 L. R. A. (n. s.) 925, 101 Pac. 894; Doornbos v. Thomas, 50 Mont. 370, 147 Pac. 277.) As was said by this court in the Doornbos Case: “When the plaintiff, after a fair trial of the drill, discovered the defects in it, he had these options: (1) To rescind the contract if the facts justified it and recover the purchase price; * * (2) to retain the drill and bring his action for damages for a breach of the warranty; or perhaps (3) to bring his action for the fraud practiced upon him. * * iS If the purchaser elects to exercise the first option, he is bound by his election, and cannot
However, as defendants continued in possession and operated
2. Plaintiff’s fourth, fifth, sixth and seventh assignments of error are directed to the insufficiency of the evidence to warrant the verdict, and will be considered together.
As to the notes and mortgages set forth in the second cause of action, aggregating the principal sum of $1,032 representing the purchase price of the separator and attachments, purchased at a different time and under a separate contract from the other machinery, no evidence whatever was offered by the defendants to support their allegations of either a failure of
As a defense to the notes and mortgages' set forth in the
“Whether or not the contract is entire or divisible depends on the intention of the parties. The intention is to be ascertained from the language used, the subject matter of the contract, and from a consideration of the circumstances.” (2 Elliott on Contracts, 1543.)
There was no attempt to show what portion of the purchase price covered the tractor and what portion the plows and plowshares. Assuming that the evidence shows a failure of consideration or a breach of warranty as to the engine, it can be no more than a partial failure of consideration for the notes or a breach of warranty as to the engine alone. In the absence of some proof as to the value of the engine, the jury was in no position to determine the damage the defendants suffered by reason of the breach as to the engine, even though they believed it was without value.
In J. I. Case T. M. Co. v. Scott, 96 Wash. 566, 165 Pac. 485, the supreme court of Washington said: “Under contract of sale of a plow and engine, providing that the order is divisible as to each machine and attachment, and that failure of a separate machine to fill the warranty shall not affect buyer’s liability for any other, the plow fulfilling the warranty, * «= * the buyer must pay therefor, notwithstanding breach
Under like circumstances, the court of civil appeals of Texas said: “Under the facts of the case, there was not a total breach of the warranty, for much of the machinery was not defective; and, such being the case, if the'defendant desired to recover the damages sustained by reason of a partial breach, he should have proved such items of damages, which was not done.” (Gilbert v. Gossard (Tex. Civ. App.), 73 S. W. 989; Moline Plow Co. v. Wilson (Old.), 176 Pac. 970.)
Inasmuch as the defendants offered/ no evidence of any defect in the plows and plowshares, it is evident that the notes and mortgages set out in the first' cause of action were given for some value; what that value was, taking the defendants’ statement that the engine was worthless as true, does not appear. “The measure of damages for a breach of warranty on a sale of personal property is the difference in value between the articles sold and what it should be according to the warranty.” (Rev. Codes, secs. 6061, 6062; Hogan v. Shuart, 11 Mont. 498, 28 Pac. 969; Lander v. Sheehan, 32 Mont. 25, 79 Pac. 406.)
But, aside from these considerations, we are of the opinion
If we should hold that, notwithstanding such agreement, the action of the branch manager amounted to a waiver of the condition requiring notice in the first instance, we still have nothing to show a compliance with the requirement of a second notice, and nothing in the testimony to excuse the giving thereof.
The remarks of this court in the case of Best Mfg. Co. v. Hutton, 49 Mont. 78, 141 Pac. 653, are pertinent here: “It is not a function of the courts to make contracts for private parties, but when private parties freely contract with each other and the terms of their contracts are not unlawful, it is the duty of courts to enforce them. If the defendant expected to stand upon the warranties, his course under the contract was to ascertain whether the outfit could meet the warranties before putting it to other uses, or at least not to use it after ascertaining that it was a failure. * * * Under this contract, use of the outfit for twenty days constituted not merely a waiver, but an acceptance and a waiver; if the acceptance had not been made to also constitute a waiver, it would still remain an acceptance. A breach of warranty which has not been waived may be pleaded by way of counterclaim to an action on the purchase price, but it cannot be relied on as a defense, after acceptance and retention of the purchaser, with knowledge of the breach.” This seems to be the generally accepted rule. (Minnesota Threshing Machine Co. v. Lincoln, 4 N. D. 410, 61 N. W. 145; Garr-Scott Co. v. Green, 6 N. D. 48, 68 N. W. 318; J. I. Case Co. v. Hall, 32 Tex. Civ. App. 214, 73 S. W. 835; Aultman-Taylor Co. v. Weir, 67 Kan. 674, 74 Pac. 227; Larson v. Minnesota Threshing Machine Co., 92 Minn. 62, 99 N. W. 623; J. I. Case Co. v. Mattingly, 142 Ky. 581, 134 S. W. 1131; Avery Planter Co. v. Peck, 86 Minn. 40, 89 N. W. 1123; Heagney v. J. I. Case Co., 4 Neb. (Unof.) 745, 96 N. W. 175.)
Having retained and used the engine for more than two years after discovery of the alleged breach of warranty—in fact up to the very time of the commencement of this action—
Defendants allege a voluntary retaking of the machinery
While the defendants allege that they paid out $600 in attempts to make the engine do the work, defendant A. W. Terpening testified generally that he expended, during the three periods he was operating the engine, $1,200 to $1,400; on cross-examination he recalled various small sums he had paid out for repairs, but made no attempt to fix the time of such payments, and we find nothing in the contract warranting a recovery for moneys expended in replacing broken or wornout parts of the machinery.
3. The motion for a new trial was submitted to the successor of the judge who tried the case, but upon the cold record the motion should have been sustained and a new trial granted.
The judgment of the district court is reversed and the cause remanded, with direction to said court to grant a new trial.
Reversed and remanded.