55 N.W. 583 | N.D. | 1893
The defendant sold and delivered to plaintiff a twine binder. For this, plaintiff gave his three promissory notes. Fie subsequently returned the machine claiming that there was a breach of the warranty accompanying the sale, and, having paid two of these notes, he brings suit to recover the amount so paid, and also the amount due on the other note. If there was a valid warranty on such sale, and a breach thereof, and a valid rescission of the contract, then the consideration for these notes failed, and it was the duty of the defendant to return the note which remained unpaid, and to restore the money which had been paid by the plaintiff in satisfaction of the other two'notes. One of the notes was paid to the a.gent on his promise to remedy defects in the machine, and the other one was paid by plaintiff to one claiming to be an innocent purchaser for value. In making these payments plaintiff did not waive his right to a return of the money on failure of the consideration of these notes. The other note having been negotiated before maturity by the defendant, it is liable to plaintiff for the amount due thereon if a failure of consideration is established. Fahey v. Harvesting Co., 55 N.W. Rep. 580, (decided at this term,) and cases there cited.
The sufficiency of the complaint was challenged, but it is clearly sufficient. It shows a breach of warranty and rescission of the contract which would entitle plaintiff to recover the amounts paid on the two notes and the amount due on the note negotiated by defendant before maturity. All these facts relating to these notes are fully set forth in the complaint. It therefore states a cause of action. The court directed a verdict for the plaintiff for the full amount claimed. From the judgment entered upon this verdict,
But it is urged that Crafts had no authority to give the oral warranty which he made on the sale of the binder. His employment was in writing. It restricted his power to warrant to a written warranty of a specified charactér, differing from the oral warranty given to plaintiff. This writing was offered in evidence but on objection of plaintiff it was excluded. In this there was no error. There is no pretense that plaintiff had notice of this restriction of the power of the agent. On the contrary, it affirmatively appears that he did not -have such notice. Unless actually restricted in his authority an agent to sell has power to
It is also urged that this written employment of Crafts as agent should have been received,'because it showed on its face that his employment was only for the season of 1889, and that therefore nothing done by Crafts during 1890 would bind the defendant. In the same connection it is urged that the return of the property to Crafts in 1890 would not be a good delivery to defendant if Crafts had ceased to be defendant’s agent. This excluded writing, it is urged, was evidence of the fact he was not such agent for 1890. But it was not evidence of this fact. It did not show that he was not agent for 1890. It was not at all inconsistent with his employment as agent the following year. Moreover, there is another reason why it was not error to receive this writing for this purpose. It was plainly offered for another purpose, for which it was incompetent, i. e., to bind plaintiff by restrictions on what would otherwise be the agent’s authority, without offering to bring home to plaintiff notice of such restriction. Being rejected as evidence for this purpose, the defendant should have stated the other object for which it was desired to have it admitted in evidence. Having failed to do so, he cannot complain of the refusal to receive it as error. There was no claim on the trial that Crafts was not the agent of defendant during the year 1890, the same as the year before. We do not think that the presumption of the continuance of the agency, after the fact of agency had been once established, could be rebutted by the introduction of the written contract of employment, silent on the point as to whether the agent was employed the ensuing year, when the agent himself was put upon the stand by the defendant as a witness for defendant. A simple inquiry would have settled this question, and the fact that Crafts