190 P. 937 | Utah | 1920
The plaintiff commenced this action against defendant to recover the purchase price of what is called a Massey-Harris harvester. In its complaint the plaintiff in substance alleged that on the 3d day of May, 1916, it sold to the defendant a harvester for the sum of $950, which sum the defendant agreed to pay as follows: $60 when the harvester was delivered, $450 on November 1, 1916, and the remainder on November 1, 1917 — that said harvester was sold pursuant to the terms of a certain contract and warranty which are attached to and made a part of the complaint; that the defendant had failed to comply with the terms of said contract and had failed to pay the purchase price of said harvester, or any part thereof, all of which was due, together with interest, etc. The defendant filed an answer to said complaint in which he admitted the execution of the contract attached to plaintiff’s complaint and denied that he was indebted to the plaintiff in any sum or amount. The defendant, as an affirmative defense, also relied on the terms of the warranty which was a part of the contract of,sale, and to which we shall more specifically refer hereinafter, and averred that said harvester did not fulfill the terms of said warranty, stating the facts with respect thereto, and, in effect, further averred that the plaintiff had waived certain requirements of said warranty to which we shall more fully refer hereafter.
The case was tried to a jury, which returned a verdict in favor of the defendant, and the plaintiff appeals.
Preliminarily, plaintiff’s counsel contend that the defendant had failed to plead a waiver, and hence its demurrer to that part of defendant’s answer should have been sustained. It is not necessary to enter upon an analysis of the pleadings. It must suffice to say that the facts constituting the alleged waiver were sufficiently pleaded to authorize the admission of the evidence relating thereto, and hence this contention cannot prevail.
Proceeding, now, to a consideration of the other errors assigned: The plaintiff relies upon the terms of the contract of warranty pursuant to which the harvester in question was sold and delivered. The warranty, so far as material here, reads as follows:
“It is warranted that the machinery and goods hereby sold are made of good material, and durable with good care, if properly operated by competent persons with sufficient steam, gasoline, horse, or other power, as the case may he, and the printed rules and directions of this company and of the manufacturer are intelligently followed. If by so doing, after trial of five days by the second parties, said machinery or other articles shall fail to fulfill the warranty, written notice thereof shall at once be given to the company at Salt Lake City, Utah, and also to the agent through whom received, stating in what parts and wherein it fails to fulfill the warranty, and a reasonable time shall be. given t’o said company to send a competent person to remedy the difficulty, the second parties rendering necessary and friendly assistance, said company reserving the right to replace any defective part or parts, and if then the machinery cannot be made to fill the warranty the part that fails is to be returned by the second parties free of charge to the place where received and the company notified thereof, and at the company’s option another substituted therefor that shall fill the warranty, or the notes and money for such part immediately returned and the contract rescinded to that extent and no further claim made on the company. Failure to so make such trial, or to*386 give such notice in any respect shall he conclusive evidence oí due fulfillment of warranty on the part of said company and that the machinery is satisfactory to the second party, and the company shall be released from all liability under the warranty. Any assistance rendered by the company, its agents or servants, in operating said machinery or in removing any actual or alleged defects, either before or after the five days’ trial shall in no case be deemed any waiver of, or excuse for, any failure of the second parties to fully perform the conditions of this warranty. * * * ”
A contract and warranty in terms precisely like the one in question here was passed on by this court in the case of Consolidated Wagon & M. Co. v. Barben, 46 Utah, 377, 150 Pac. 949. It was there held that the defendant, Barben, had failed to comply with the terms of the warranty, and that Consolidated "Wagon & Machine Company had not waived the terms thereof, and hence the defense that was there set up could not prevail. Counsel for plaintiff insist with much vigor that the Barben Case and the cases therein cited in its support control the ease at bar. We have carefully read and considered all of the evidence in the case at bar, and, after doing so, are unable to yield assent to counsel’s contention. The controlling facts in this case, stating them as briefly as possible, in substance are these: The defendant, in May, 1916, purchased from the plaintiff what in the record is designated as a Massey-Harris harvester, hereinafter, for convenience, called harvester, which was a combined reaper and thresher. The harvester was sold pursuant'to the terms of the warranty hereinbefore set forth. While in the contract of sale the harvester was sold f. o. b. Salt Lake City, it was in fact delivered to the defendant at the town of Garland, in Box Elder county, Utah, where, according to the evidence, the plaintiff conducted a branch house or branch office. The harvester was delivered in boxes and was not assembled or “set up” in working condition. About the 1st of August, 1916, and some time before defendant’s grain was ripe, and at about the time the harvester was delivered at Garland, the plaintiff sent one D. W. Pearson from its principal office at Salt Lake City, who in the record is designated as one of plaintiff’s “general experts,”
Plaintiff’s counsel also vigorously insist that the defendant has failed to comply with some of the material terms of the warranty. They contend that the defendant under the warranty only had the right to try out the harvester for .five days, and that after a trial of five days he was required to immediately notify the plaintiff in writing at the home office at Salt Lake City, and also in the same manner notify the branch office at Garland, stating the particulars in which the harvester failed to fulfill the warranty, all of which he failed to do. Counsel therefore contend that' defendant must fail in his defense for the same reason that the defendant in the Barben Case failed. As before stated, we cannot yield assent to counsel’s contention. If it were true that the defendant here had failed the same as the defendant in the Barben Case failed, counsel’s contention should prevail. Counsel, however, construe and apply the terms of the warranty in question too literally. The terms of any contract, whether it be a warranty of something else, must receive a fair and reasonable construction and must be applied in the light of the circumstances and conditions under which the parties acted at the time it was entered into. This case, in its controlling features, is wholly unlike the Barben Case. Here the harvester was not even delivered to the defendant in the ordinary condition, but it was delivered as unassem-bled machinery. The plaintiff took it upon itself not only to assemble the parts and to “set up’’ the harvester, as Mr. Pearson says, but it, through its special expert, undertook
Nor is the contention tenable that the defendant gave the machine more than five days’ trial, and that for that reason he had breached the terms of the warranty. According to the statements of the defendant and his witnesses, the harvester was not attempted to be and was not operated after plaintiff’s employés had left the ranch. If,
It is, however, insisted that for the reason that the defendant testified that he had in fact mailed the written notice required by the warranty to the. plaintiff at its home office the court erred in permitting him to introduce a carbon copy of such notice without first laying the proper foundation for its introduction by accounting for the original,
Nor did the court err in its charge to the jury. While it is true that the instruction respecting waiver was not happily worded and might have been made more specific, yet, in view of all the evidence, the jury could not have been misled by the instruction, and the plaintiff was
Nor did the court err in refusing plaintiff’s requested instructions. The requests, in view of the facts and circumstances, stated the law too favorably for the plaintiff, and if the court had charged as requested it would have constituted error.
We have carefully considered the evidence and 'the whole proceedings, and are forced to the conclusion that the facts were fully and fairly presented to the jury; that the case on the part of the plaintiff was well presented, and that, while the jury might have found some of the controlling issues in favor of the plaintiff, yet there is ample evidence in the record to justify the finding in favor of the defendant. Moreover, in our judgment, the rights of the plaintiff were fully protected in the course of the trial.
We have not referred to the numerous cases cited by counsel for both parties for a reason that in view of the controlling facts and circumstances of this case none of the eases cited is in point.
For the reasons stated, the judgment is affirmed, with costs.