Deering v. Johnson

86 Minn. 172 | Minn. | 1902

LOVELY, J.

Action upon an order given for a harvester and binder. Defendant demurred to tbe complaint upon tbe ground that it did not state a cause of action. Tbe demurrer was sustained, from wbicb order plaintiffs appeal.

It appears from tbe complaint that on May 27, 1901, tbe parties entered into an agreement in writing in tbe form of an order for a harvester, bundle carrier, and binder cover, for which defendant was to turn over, on its delivery, an old Deering binder, and an approved note for $100, payable in November following. This order was addressed to plaintiffs’ agents, signed by tbe defendant, and accepted by plaintiffs. Tbe complaint further alleges that

“The plaintiffs duly accepted said order, * * and have duly performed all tbe conditions * * * on their part, * * and on or about tbe 25th day of June, 1901, tbe plaintiffs duly delivered tbe same to tbe defendant in accordance with said'order or contract; that tbe defendant refused to accept said machine, and refused to settle for tbe same in accordance with the terms of said contract.”

Tbe order, wbicb is set forth in full in tbe complaint, contains provisions for a warranty of tbe machine by plaintiffs, with conditions providing that tbe Deering Harvester Company will, upon tbe failure of such conditions, take it back, etc. The complaint bears date of August 30, 1901, and asks a recovery of $100, — tbe designated amount of tbe note wbicb defendant was to give, but refused to deliver.

No reason is assigned by the court below for sustaining the demurrer, and we can only infer tbe grounds upon which it acted in that respect from respondent’s brief. It is apparent from the complaint that tbe transaction was between tbe Deering Harvester Company and defendant. While tbe order was addressed to certain persons designated as “agents,” it is stated elsewhere in tbe complaint that it was executed by the parties to the action. It is also fairly inferable from the terms of the order that the plaintiffs were the parties with whom the contract was made. . They are named therein as the persons making the warranty. The allegation of the acceptance is explicit, as well as the averment that the machine was actually delivered under the terms of the order. Upon such delivery, plaintiffs were entitled to have the note for $100 provided for therein, which was to run until the following November. The averment that defendant refused to accept the machine and settled for the same in accordance with the terms of the contract clearly implies that he declined to give this note. Upon these facts, no other conclusion can follow than that, upon such refusal to settle, there was a breach of the contract by the defendant. The action was not prematurely brought.

For the breach of an agreement to execute a promissory note payable in the future, damages may be recovered presently, and the amount for which the note was to be given will be the prima facie measure of such damages. American Mnfg. Co. v. Klarquist, 47 Minn. 344, 50 N. W. 243.

Order reversed.