33 Minn. 56 | Minn. | 1885
Action on a promissory note for $125, dated July 19, 1880, due November 1, 1882. Answer: that the note, with two
Some of the points made by appellant require a construction of the warranty in respect to notice of the machine not working well. As to that it claims that the first harvest was to fix and determine whether the warranty was satisfied or not, and after that time no complaint or notice (no matter, as we understand it, how many times-complaint had been made and notice given during the first season, if, whenever notified, during that season it fixed the machine so that it would work) could change or vary the fixed rights of the appellant
We think there was evidence on the trial to show that respondent did as much as the warranty required of him, and that the first season’s trial showed a breach of the warranty. It tends to show that when first set to work in the field by appellant’s agent, it worked badly; that he finally got it to work very well; that the next day it failed again, and, after two or three days trying it, respondent gave the agent notice, who succeeded in making it run a little better for a short time; but the next day it failed again, of which the respondent gave the agent notice, who, two or three days after, went with an expert and fixed it so that it worked for half a day, when it was as bad
The evidence that the machine worked badly the second and third seasons, it being shown that it worked in the same way from the beginning, that it wasted grain, and to what extent it wasted, assuming it to have been due to defects in the machine, was proper to show that, when sold, the machine was not what it was warranted to be.
On the trial the appellant gave in evidence the written release pleaded in the reply. To this, respondent gave evidence tending to show that he could not read English well; that when appellant’s agent came to him with papers to sign, on the date of the release, he told him he could not read English, and that he would have to take his word as to what the papers were; that the agent had only three papers for him to sign, of which the agent told him one was a note, one a chattel mortgage, and the third a notice to appellant to have a note extended; and that he signed the papers supposing them to be such. If the jury found this evidence to be true, then the signature was obtained by fraud, and the release was void.
At the date of the release the respondent gave a new note in renewal of one of the original notes given for the price of the machine. The appellant claims that by giving the new note, without reserving his claim for damages upon the breach of warranty, the respondent waived such claim. With respect to any mere defence to the original note; the renewal might be an absolute waiver, or, under some circumstances, an estoppel against asserting the defence. But it would not be so with a counter-cause of action, though arising out of the same transaction as the note. He might pay the note, or let judgment go against him upon it, and then bring suit on his counter-cause of action. One insuperable objection to holding that payment or renewal of the note would operate as a waiver or release of the counterclaim, where nothing was said about it, would be that such waiver
So far as the foregoing matters are concerned, the rulings of the court below were correct. But upon some other matters, essential, though of minor importance, its rulings were erroneous. The general measure of damages upon such a warranty is the difference between the market value of the chattel, if it were such as it was warranted to be, and its market value as it actually was. After proving what the market value of the machine would have been if it had been as warranted, the respondent asked his witnesses what, in its actual condition, was it worth as a harvester ancl binder. These questions were properly objected to, but admitted. Two objections are made, each well taken; first, that the witnesses were not shown to have sufficient knowledge of the market value of such machines to express an opinion; second, the questions are based on an improper rule of damages. The witnesses showed no other knowledge of the value than might be acquired from working the machine or seeing it work. This might enable them to testify to its condition, but would not enable them to give an opinion of its market value. The questions were also bad because limited to the value for a specific purpose, when the inquiry should have been as to its market value generally.
It was also proper to show, as appellant offered but was not permitted to do, that, when paying one of the notes given for the price of the machine, defendant made no objection to paying it, and made no complaint that the machine did not work well. It would have had some tendency to prove that he had no complaint to make.
Order reversed.