116 N.W. 335 | N.D. | 1908
This is an action for damages based upon the following facts as set forth in the complaint: ¡That on the 15th day of July, 1899, plaintiff purchased from the defendant one Minneapolis threshing separator with attachments, and agreed to pay therefor the sum of $850, and that, pursuant to the sale of said separator and the terms of the contract, the plaintiff executed and delivered to the defendant his promissory note dated August 24, 1899, for $850, due November 1, 1899, with 7 per cent interest from date; that said separator was sold under an .express warranty, whereby the defendant agreed and warranted that the separator was well made of good material, and that when said machinery was properly operated by competent persons it would do the work for which the same was intended as well as any machinery of the same size manufactured in the United- States, and that, if the same did not do the work for which it was intended as well as any 'other machinery, the defendant would make the same fill such warranty, and that upon failure to do so the plaintiff might return said machine to the defendant; that the separator did not work .in accordance with said warranty, for- the reason that the same was not made of new materials, and that the separator was old and badly damaged machinery painted and fixed up and repaired to represent new machinery; that upon the failure of said separator to do the work as warranted the plaintiff immediately gave notice of that fact to the defendant as provided for in said warranty, and that in pursuance of such notice the defendant sent an expert to fix said machine, and that the said expert failed to make said machine work, and that in consequence of such failure the plaintiff rescinded the contract and returned the machine to the defendant -at the place specified in the warranty, and afterwards gave the defendant notices in writing of the return of said machine and demanded from the defendant the return. of the purchase price; that the defendant failed to return the plaintiff’s note, but on the contrary sold and transferred the same in due course of business to one Lane, and that said Lane brought an action against the plaintiff upon said note and recovered judgment against the plaintiff for damages and costs amounting to the sum of $1,022.12, which said- sum the defendant paid on the 23d
It is claimed that no sufficient foundation was laid for the introduction of secondary evidence of the contents of a notice claimed to have been sent by the plaintiff to the defendant that the machine had failed to work according to the warranty contract. The plaintiff demanded the production of the notice from the defendant at the trial, and defendant’s counsel then stated that no such notice was in defendant’s possession or had been received by it. Thereupon the court permitted plaintiff to show by oral evidence what the contents of the notice were. The objection to such evidence was that no sufficient effort had been shown to find the copy that had been retained by plaintiff. The precise objection was that no inquiry had been made of the person with whom the notice had been left about five years previous to the trial. Said person had been dead about three years prior to the trial. If there was a waiver of the giving of this notice by the acts of the company itself through its authorized agents, then the question of the giving of the notice became immaterial, and the admission of such evidence, if erroneous, would be without prejudice. We are of the opinion that the authorized representatives of the company responded to some one of the notices claimed to have been given by mail or delivered personally under the contract, and the fact whether sufficient foundation was laid for secondary evidence of the contents of the notice that was claimed to have been mailed could not be urged by the company in view of its response to some notice. The general agent of the defendant company was a witness at the trial, and was interrogated at considerable length in reference to the circumstances under which the expert Foster appeared and tried to make the machine work as warranted. It appears as undisputed that Foster
The defendant insists that the plaintiff cannot be heard to assert that- there has been a waiver of the conditions of the warranty as to notice for the reason that no such fact was alleged in the complaint. Whether a waiver in such cases must be alleged before a party is entitled to prove that fact we are not called upon to decide in this case, and we express no opinion on that point. It is sufficient for the purposes of this case to say that no. sufficient objection to this evidence was made or suggested at the trial. It is raised for the first time in this court, and it comes too late. We have recently held that before a want of a pleading in such cases can be urged against the admissibility of evidence in this court the record must show that the evidence was objected to at the trial by an objection sufficiently specific to call the trial court’s attention to the absence of appropriate pleading. Aber v. Twichell, 17 N. D. 229, 116 N. W. 97.
The separator was warranted to “do the work for which it was intended as well as any machinery of the same size manufactured in the United States” when operated by competent persons in accordance with the printed rules and directions of the manufacturer. This separator was equipped with a 40-62 inch cylinder, and was operated by the plaintiff with an 18 horsepower Buffalo Pitts engine bought in 1885. Expert witnesses were permitted to state their opinions after having seen the separator at work as to whether it did the work for which it was intended as well as other separators which the witnesses were familiar with the working of, without
It is objected that the court erred in admitting Exhibit E in evidence. This exhibit is an entry made in plaintiff’s daybook kept as. a record of daily transactions in plaintiff’s store. The objection to-the evidence as now urged is that the memorandum was independent evidence of the contents of the notice claimed to have been sent toi
The court charged the jury as follows: “The contract will be sent to the jury box with you, gentlemen, and you can wrestle with it at your pleasure” — and defendant has excepted to it, and urges that it was such a disparaging comment on the manner of printing the contract as necessarily would create in the minds of the jury an impression that the contract was of no importance, and that the court entertained an unfavorable opinion of it. Immediately following the portion of the charge excepted to, the court added: “I am unable to read it in the present light.” We think the contention that the remark was prejudicial is entirely unfounded. There was not necessarily any reflection in these words against the contract, and it is entirely an erroneous conclusion to say that the contract was condemned by the court because printed in small type. If true that this charge was inferentially a censure upon the manner of printing it, we could not say that it was prejudicial in view of the fact that the court had previously stated to the jury that the contract was a legal one, which the parties had a right to make and each party must comply with the terms thereof.
The appellant claims that the giving of the following instruction was erroneous and prejudicial: “In this case the testimony offered by the plaintiff is that the notice was sent within one week. If you believe that it was sent, as stated by the plaintiff, it will be compliance with that portion so far as time is concerned.” The objection urged against it is that it singles out the plaintiff’s contentions on this point and is silent as to defendant’s contention that
We think this sufficiently covers what is objected to i'n the quoted instruction and the one following objected to on the same ground. We think that it would be an unreasonable conclusion to say, in view of this language, that the jury was not instructed that, if the plaintiff failed to send the notice required by the contract within one week, he could not recover. Taking the charge on this subject in its entirety, there is no room for the contention that the court singled out plaintiff’s evidence and omitted what was claimed by the defendant. The defendant requested no instructions to be given on its behalf to cover this phase of the case, and, in the absence of such request, there is no foundation to claim error. If the charge was too general in this respect, a request for a more specific statement of the defendant’s claims as shown by the evidence would undoubtedly have been given.
No reversible error being shown, the judgment is affirmed.