106 Neb. 214 | Neb. | 1921
Plaintiff is a dealer in agricultural implements. He sued to recover the purchase price of a tractor gang plow, alleging misrepresentation and breach of warranty. A jury was waived. Plaintiff recovered a judgment for $1,286.25, which included the purchase price, interest and freight. Defendant appealed.
Though there is some conflict in the evidence the following material facts seem fairly to be established. The tractor plow was purchased by plaintiff through G. Mattison, one of defendant’s agents, pursuant to the terms of a written contract executed September 8, 1917. A warranty is indorsed on the contract, of which it is a part,
It appears that the tractor plow was shipped to Winnebago station, and. wasi consigned by defendant to “order of Advance Rumely Co.” Upon arrival at Winnebago, H. Mooney, an agent and tractor plow expert in defendant’s employ, collected the purchase price and freight from plaintiff before the machine was tested. Subsequently it was unloaded from the car and prepared by him for a trial, and by him .driven ab'out two miles distant to the farm of C. C. Frum, plaintiff’s prospective buyer. On September 16, 17, and 18, Mooney attempted to operate the plow, but it clearly appeal's that it failed to do the Avork for which it was intended and which it was warranted to do. When the field demonstration was closed plaintiff informed Mooney that the plow did not meet the Avarranty, and that, in view of his failure to make it Avork, he refused to accept it and demanded a return of his money. On September 25, 1917, and at subsequent intervals, plaintiff, by -letter addressed to the Lincoln agency, repeated his complaint and again demanded repayment of the purchase price and freight. It also appears that Frum told Mooney to take the plow away from his farm because, as he says, he informed him that it was worthless. It seems though that, over Frum’s protest, as he testified, “Mooney took the tractor around north of the corn-crib and left it.” Apparently it has remained there ever since, though there is some evidence on the part of one of defendant’s employees that, upon subsequent examination of the tractor, it appeared to him that it had been used to furnish power, apparently for some sort of a belt machine. On this point, however, the evidence conflicts.
It was shown that other tractor plows of substantially the same size and rated capacity, when working under sub
Defendant argues that because plaintiff did not return the tractor plow he cannot therefore recover for a breach of the warranty. It seems clear that the facts do not warrant the conclusion that, in legal effect, there Avas a delivery or an acceptance. Plaintiff Avas not obligated, under the facts, to accept the ploAV. It was consigned to defendant’s order and, for all of the time material to the issues here, it Avas in the possession of defendant by its agent Avho attempted, but failed, to make it work, and subsequently left it at the farm where the demonstration Avas had. Apparently it remained there subject to defendant’s order and under its control. In vieAV of the facts it is obvious that no obligation rested on plaintiff to return it to the company.
Defendant relies upon this recital in the warranty clause of the contract: “Purchaser shall not be entitled to rely upon any breach of above Avarranty * * * unless: (a) Notice of the defect or breach, particularly de
Plaintiff contends that certain inducements were offered to him that caused him to execute the written contract, and that such inducements constitute an implied warranty. We conclude that the express warranty excludes the implied Avarranty, for which he contends, because it had to do with practically the same subject. Defendant cites 35 Cyc. 392, wherein the general rule is well stated: “An express Avarranty Avill exclude an implied warranty on the same or a closely related subject. Thus an express Avarranty of quality will exclude an implied Avarranty of fitness for the purpose intended.”
It is contended by defendant that, when “Buckley paid' the freight and made settlement * * * before the tractor was unloaded, * * * title at once passed to him.” In its brief it is also said: “The court will search in vain in the contract for any provision vvhich obligates us to demonstrate this tractor. * * * It is’ true that as a matter of courtesy the defendant company sends an expert to the place of delivery and teaches the new owner how to use the tractor.”
It is a harsh rule for which defendant contends. The lesson that was communicated to the prospective purchaser was more than a courtesy. It was a business en
Another feature of the case remains. Service was obtained on defendant by delivery of a summons to the state auditor of public accounts at Lincoln, under section 725, Rev. St. 1913. Defendant appeared specially and argues that the district court did not have jurisdiction of the subject-matter of the action. The language of section 725 is involved and obscure, but the object of that part relating to service of summons seems to be to provide, in effect, that a foreign corporation is “found,” within the meaning of section 7619, Rev. St. 1913, in a county “where the cause of action, or some part thereof, arose, or in counties where the contract, or portion thereof entered into by such corporation has been violated or is to be performed.” Service on the appointed agent or on the auditor of public accounts is sufficient. The general rule as to venue is not changed. The provisions of the act are salutary. We knoAV of no reason Avhy a foreign corporation that is permitted to do business in Nebraska should not be holden to answer in any county in the state Avhere its contract has been violated or Avhere its provisions are te be performed.
The evidence supports the judgment. It is therefore
Affirmed.