52 Neb. 147 | Neb. | 1897
Berg recovered, in the district court of Lancaster county, a judgment against the Esterly Harvesting Machine Company, which the latter brings here for review by petition in error. The only question presented by the
The petition alleges that the Harvesting Machine Company, which we shall hereafter style the defendant, as it appeared in the district court, was engaged in selling a machine called the “Esterly Self-Binder,” and in 1891 it attempted to sell such a machine to the plaintiff, and for that purpose “fraudulently represented, led and caused this plaintiff to believe that said machine was a good and new machine and would do good work in its line, and that the machine was equal to do, and would do, as good work as any ordinary machine of a similar kind;” that in truth and in fact the machine was of inferior quality, and was of no value in that it would not perform the work that it was designed to do; that, relying on said false representations, the plaintiff received the machine, and, finding it would not work, agents of the defendant represented that they would put the machine in good order, guaranteed that it would be of the best kind and would do good work, and that if it did not do so plaintiff need not pay therefor; and thereby procured the plaintiff to sign two promissory notes for the sum of $62.50 each, which, together with an old machine surrendered to the defendant, constituted the purchase price. The petition then avers that the defendant transferred said notes before maturity to an innocent holder, and that plaintiff was compelled to pay the same. It then pleads certain items of special damage, the consideration of which was by the court excluded from the jury, so that they need not be further mentioned. The answer contains two counts: The first is a general denial; the second count pleads a written contract for the sale of the machine, followed by a special contract of warranty not necessary to here set out, but in its general char-acted similar to contracts for agricultural machinery which have frequently been described in the reports of
The evidence tends to show that the plaintiff called at the place of business of Koller & Newton,- in Pleasant-dale, who seem to have been sales agents for the defendant, and there had some conversation about purchasing a machine. The following day a Mr. Lynch, an agent of the defendant, called at plaintiff’s farm, and it would seem that the contract of sale was there entered into, but the notes and old machine were not then delivered. Thereafter the plaintiff obtained the machine from Koller & Newton, and took it to his farm. Mr. Hess, another agent of the defendant, came to the farm with Mr. Koller, and the machine was tried. It did not work properly. Some adjustments were made, but the defect was not remedied. Mr. Hess ascribed the failure of the machine to work to the undue moisture of the soil. Then followed the only representation, asidé from the contract of warranty, which appears at all in the evidence prior to the execution of the contract. The plaintiff narrates it as follows: “Then Hess took out his pocketbook and drawed the notes, and says I, Mr. Hess, I ain’t going to sign those notes, I want to see how the binder works first. Well, he says, I am perfectly satisfied that binder will give satisfaction when the ground is dry, and you will save us the trouble of coming back again if you will sign them notes, and if the binder don’t give satisfaction, we will make it give satisfaction, he says.” Twice again the
Two principles are elementary: First, that a false representation to be actionable must not be a promise to be performed in the future, but the representation of an existing fact; and secondly, that in the absence of special peculiar circumstances one is not warranted in relying on an expression of opinion by a vendor with regard to the quality of his goods. The representation must be a statement of known fact, and generally not merely the expression of an opinion. (Cohn v. Brodhead, 51 Neb., 834.) It will be observed that Hess merely said that he was satisfied that the machine would give satisfaction. He did not represent, as charged in the petition, that it was a new machine; that it was a good machine; that it Avas equal to and capable of doing as good work as any ordinary machine of a similar kind. He confined himself to expressing his opinion that it would give satisfaction, —presumably satisfaction to the plaintiff, — and this was followed by a promise to make it give satisfaction. In other words, we have here the vendor’s opinion as to the future operation of the machine and his promise to, in the future, make the machine conform to the opinion then expressed. There can be no recovery in an action of deceit on such testimony. The plaintiff contends that the defendant having pleaded the warranty, and the evidence being of such a character as to show a breach of Avarranty, the verdict ought not to be set aside, defendant having voluntarily tendered that issue. But the warranty Avas pleaded as a defense, probably unnecessarily, but certainly not in such a way as to transform the plaintiff’s cause of action from one in the nature of deceit to one on a contract which the plaintiff denied. The plaintiff’s
Reversed and remanded.