Amarillo Hardware Co. v. McMurray

15 N.M. 562 | N.M. | 1910

OPINION OF THE COURT.

PARKER, J.

-Appellee brought an action in the court below for goods sold and delivered, the principal item of which was a three section Emerson disk plow operated by means of a steam engine. Appellant defended upon the ground that the plow was sold upon the express warranty that the said plow would break up and properly turn over the salt grass sod of the defendant upon his farm east of Roswell. He also pleaded an implied warranty to the same effect and charged that the plow failed to do the work in compliance with the warranty. Appellee replied, denying the warranties alleged in the answer. The cause was tried by the court without a jury -and the court made the following findings of fact:

“1. That the steam plow which constitutes the chief item of the account sued upon was bought upon the agreement that it was satisfactorily to plow the salt grass land on defendant’s farm near Roswell, and if not satisfactory for this it was not to be accepted.

“2. Subsequently, to-wit, in December, 1906, the plaintiff’s representative came to Roswell on a telegram from defendant to make the test and the roads to defendant’s farm being impassable for the plow by reason of snow and mud, and it being apparent that this condition would continue for some time, it was mutually agreed that the test of the plow should be made instead on Hondo land, southwest of the city of Roswell.

“3. That thereupon a test was made upon such land in the presence of plaintiff’s agent and the defendant in person which test proved satisfactory to the defendant and said plow ,was thereupon accepted by defendant as .complying with the terms of sale and the sale thereupon became thereby consummated.”

1 It appears from the findings and evidence that after the plow had been shipped from Amarillo, Texas, to Roswell, New Mexico, the appellant requested appellee to send its representative to Roswell to set up and start the plow; that by reason of the condition of the roads to appel1 lant’s farm, it was impossible to make the test of the plow upon appellant’s farm in accordance with the warranty first given; that .thereupon it was mutually agreed between the appellant and appellee’s representative that the test of the plow should be made on other lands not on appellant’s farm. This amounted to the making of a new contract and a substitution of the place of test of the implement. It is urged that there is no consideration for this change of place of test, but we are unable to understand how any consideration was required. If a consideration was required, then a consideration for the making of the original contract of sale would be required. There was simply a substitution of terms of the contract in so far as the place of the test of the implement is concerned, all other terms of sale remaining the same. This disposes of all of the questions raised in appellant’s brief, except one, which we will notice hereafter.

2 Appellant complains of the findings of the court as being contrary to the weight of the evidence. We have carefully examined the transcript and find that they are supported by substantial evidence, and, consequently, cannot be disturbed. Candelaria v. Miera, 13 N. M. 360.

There being no error in the judgment, it will be affirmed ; and it is so ordered.