113 N.W. 614 | N.D. | 1907
This is an action to foreclose a chattel mortgage given to secure three promissory notes for an aggregate sum of $3,165. The answer sets up certain matters in defense and three separate counterclaims. Two of the counterclaims were disallowed by the trial court, and the defendant does not dispute the correctness of the refusal to allow them. The trial court dismissed the plaintiff’s action and allowed a judgment upon one counterclaim for the value of a secondhand threshing rig which the defendant turned over to the plaintiff in part payment for the new threshing machine and attachments, for which the notes and mortgage in suit were given, which said second-hand threshing machine, it is claimed, was wrongfully converted to its own use by the plaintiff. The principal defense interposed by the defendant is-that he did not make an absolute purchase of the new machine, but that it was delivered to him for trial only, and, if found on such trial not to do satisfactory work in all respects, then the machine was to be returned to plaintiff and the notes and mortgage to be returned to defendant. The trial court found for the defendant upon the principal issue raised by the answer, and gave judgment for the defendant for the sum of $948.76 on the counterclaim. The plaintiff appeals and requests a review of all the evidence on a trial de novo under section 7229, Rev. Codes 1905.
The pivotal facts in the record may be summarized as follows: On June 22, 1905, the defendant signed an order for the purchase of a threshing machine and attachments from the plaintiff. Under the provisions of the order, it was subject to approval by the
It is true that the defendant gave notices to the company of the failure of the machine to work in the mode provided for in the order and did some other things that would indicate that he was endeavoring to comply with the terms of the written order. We do not think that these facts show that there was no oral contract. The written contract contained a warranty, and defendant had in. his hands a copy thereof, which specified what should be done by defendant in case of a breach of the warranty. Under the oral contract, also, the machine was warranted to do good work. Although it was not incumbent on defendant to serve these notices under a delivery for trial purposes, still it is not a fact that shows that there was no oral contract. The defendant might well have thought it necessary to gives these notices, although under the oral contract it was not necessary. The defendant returned the machine after thorough trial and demanded his notes and the delivery to him of the second-hand machine which had been delivered to plaintiff, and that is all that he was required to do.
It is claimed by appellant that the machine worked well and fulfilled the warranty. On a careful review of the evidence, we are satisfied that it is amply shown that it did not. No useful purpose
The plaintiff presents the following propositions of law as fatal to defendant’s contentions: (1) The defendant, having pleaded one contract, cannot recover upon another and wholly different contract. (2) A written contract cannot be changed by a subsequent oral agreement, unless the subsequent agreement is wholly executed. (3) The plaintiff is not bound by any oral agreement or understanding made by its salesmen at the time of the delivery of the machinery, in conflict with the terms of the written order, not brought to the knowledge of the plaintiff and agreed to by it. The answer, it seems to us, alleges the making of a contract for a test of the machine and for the surrender of the notes in case the trial did not show that the machine worked satisfactorily or was as good as other machines. The written order had nothing in it showing that the machine was to be accepted conditionally for trial purposes. The answer also pleads a compliance with the conditions imposed by the written order as to the breach of the warranty. The answer contains sufficient allegations to admit of proof under both the written order and the' oral contract. We do not deem this a very material question, as we are satisfied that an oral contract was made after the written order was signed, but before the sale become completed by a delivery of the machine thereunder.
It is true that a written contract cannot be varied by parol, unless executed by the parties after its terms have been varied by agreement; but that principle has no application here under our holding that the machine was delivered for trial only under the oral ■contract. The appellant insists, however, that the plaintiff’s agents had no authority to make a new contract or to modify the terms of the written order, and that defendant had knowledge of the restrictions upon the agents’ authority, as such restrictions were printed on the written order which had been signed by defendant. The machine was not accepted by defendant under the written order. It was accepted under a new and independent contract. As to the authority of the agent to make a new contract, we think that what is said in Nicols & Shepard Co. v. Paulson, 6 N.
It is claimed that Reeves & Co. v. Corrigan, 3 N. D. 415, 57 N. W. 80, is decisive of this case. We do not think so. In that case, it was undisputed that the machine was unconditionally delivered under the written order. On the trial the defendants were permitted to show facts that varied the written order and concerning which the agents had no authority to make. This was held to be erroneous, and we think properly so. In this case, however, the written order was not complied with at all, but repudiated for the reason that defendant claimed that he had a right under the original negotiations to test the working of the machine. Upon defendant’s repudiation of the order, a new contract was entered into, and the defendant was given the right to do what he claimed should have been included in the written order. This is clearly distinguishable from the Corrigan case, just cited. The question as to the authority of the agents to modify the written order does
The judgment is affirmed.