37 Minn. 331 | Minn. | 1887
The evidence in the case is'sufficient to establish the finding of the jury that the plaintiff sold to the defendants, with warranty, a combined harvester and binder, in July, 1881, at the agreed price of $295; that the same was then delivered to them;
1. Assuming the evidence to be true, the execution of the notes, subsequent to the delivery and trial of the machine, was not a waiver of the defects complained of. The sale had already been completed. It was not apparent that the defects could not be remedied; and besides, at the time when the notes were issued, the plaintiff expressly promised to make the machine satisfy the terms of the warranty previously given at the sale.
2. It was not error, under the warranty as set up by the defendants, to allow evidence as to the working of the machine during subsequent harvests. The evidence tended to show that- the plaintiff’s agents from time to time promised and agreed to make it work well; that they were notified of the defects, and, during each year in question, attempted to repair it, and keep it in running order, but that it worked badly as a binder, and finally gave out altogether. And evidence was in any event entirely proper to go to the jury to show, upon a thorough trial, the intrinsic defects of the machine. Osborne v. Marks, 33 Minn. 56, (22 N. W. Rep. 1;) Flatt v. Osborne, 33 Minn. 98, (22 N. W. Rep. 440.)
3. Under the terms of the oral warranty, as set up by the defendants, they were not bound to rescind and return the property, but were entitled to retain it, and bring their action for the breach. Tunell v. Osborne, 31 Minn. 343, (17 N. W. Rep. 944;) Mandel v. Buttles, 21 Minn. 391.
4. Evidence of the working of other cord-binders was competent, because by the terms of the warranty the plaintiff warranted the machine to be well made, and to do just as good work as any self-binding harvester and cord-binder. The evidence showed very clearly that it did not. Indeed, the plaintiff’s agents who sold the machiné, and made the warranty, testified, from their own observation, that it was “a failure as a binder.” There is no ground for any of the ex
5. The only question of doubt in the case is in respect to the amount of damages allowed to the defendants by the jury. Upon this question we are unable to reconcile the verdict with the evidence. The warranty must be construed as broken presently after the contract was completed, and the damages are the difference between the machine as represented and as it then was. The verdict fixes its value when delivered, harvester and binder together, at $50. But it clearly appears from the-evidence of defendants’ own witnesses that the defect was in the binder only, and that the harvester, from which the binder could be separated, worked well; that the market price thereof, by itself, was one hundred and eighty dollars, and that $25 or $30 would have put it in order as a harvester. And there is nothing inconsistent with this testimony in the case. It also appears that the binder could have been replaced with a new one, and that the cost of the same was $130 and freight. It is true that the defendants testify that the machine was of no value, but it is manifest that their evidence relates to its operation and usefulness as a binder, and they make no criticism of the harvester, which was new, and, for aught that appears, well made and of full value. And there was no other testimony as to its market value. The defendants could only recover such damages as they showed themselves entitled to for the breach of plaintiff’s contract. In any view of the case, we think the amount of the verdict not warranted by the evidence. There should be a new trial on this ground.
Order reversed.
Berry, J., because of illness, took no part in this case.
