84 Neb. 583 | Neb. | 1909
Lead Opinion
Plaintiff sued to recover the agreed purchase price of a corn picker sold and delivered to defendant at his request. Defendant admitted the purchase of the machine at the agreed price, and for a defense to the action alleged, in subtsance, that the machine was purchased by defendant to pick corn, and that plaintiff represented and warranted that the machine would gather corn successfully, and that it was suitable and adapted for the
It is contended that the verdict in this case is not sustained by the evidence. We think there is much force in this contention. It appears that the defendant informed one Pontius, the agent of the plaintiff at Overton, Nebraska, that he wanted to purchase a corn picker. It further appears that plaintiff at the time of the sale did not handle and never had handled or sold corn pickers; that it did not have them listed for sale; that its agent had never seen such a machine; and that he did not have or profess to have any knowledge as to whether it would pick corn satisfactorily, or could be operated successfully. With full knowledge of the situation, defendant informed Pontius that he had been trying to get a corn picker for more than a year, but had so far been unable to do so. Pontius thereupon informed him that the machines were sold without any warranty, and that they did not deal in them, but he thought he could procure one for him. He also informed the defendant that he would call up Mr. Pilant, the agent of the International Harvester Company, who handled and controlled the sale of the McCormick corn picker, and ascertain if one could be purchased. Shortly afterward he informed the defendant of the result of his interview with Pilant, and also told him what Pilant said about the machines. At defendant’s request Pontius ordered the machine in question, and the International Harvester Company acknowledged the receipt of the order by a letter written from Omaha, Nebraska, which reads as follows: “Gilcrest Lbr. Co., Overton, Neb. Gentlemen: We have your letter of the 23d ordering a corn picker. We took this matter up with our Mr. Pilant today, who is at Grand Island, and the picker goes forward today from Council Bluffs. These corn pickers are
The defendant, when on the witness stand, admitted that the machine was sold to him without any warranty or guaranty. In fact his testimony did not differ from that given by Mr. Pontius, but after being recalled he then testified that, when he said the machine was purchased by him without any warranty, he meant any written warranty. It also appears that he told one A. G. Bronzell, who resided in Overton, that he had ordered a corn picker which was to cost him $350 and was sold to him without any warranty. On cross-examination this witness testified as follows: “Q. And it was to cost him $350? A. I think that is it. Q. And you say you asked him what kind of a guaranty he was to get, and he said he Wasn’t to get any? A. I think that was it, yes, or words to that effect; just about like one man Avould talk to another in conversation on the street. I asked him Avliat kind of terms they sold them on. Those are the words I used, I think, and he said spot cash. Q. Did you ask him about a warranty? A. Yes, sir; I asked him what kind of a warranty they gave him with it, and he said they gave
Plaintiff complains of the fifth instruction to the jury. As stated above, the evidence shows that plaintiff did not expressly warrant the machine, but defendant contends that the Mav implied a Avarranty that the machine was reasonably fitted and adapted to the purpose for which he purchased it, viz., that of picking corn. The court adopted this theory, and by the instruction complained of informed the jury, in substance, that, in the absence of an express agreement that the machine was purchased at defendant’s risk, the law implied that it was reasonably suitable for the purpose for which it was intended to be used, and if the jury were satisfied by a preponderance of the evidence that the machine was not reasonably suited for the purpose of picking corn, and that defendant made a reasonable effort to make it work, and gave plaintiff a reasonable opportunity to make it work, and if it did not then do reasonable work in picking corn, and defendant offered and was still ready to return it to plaintiff, they should find for the defendant. The rule is well established that, where a manufacturer or dealer
The machine which the defendant purchased was known as the “McCormick Corn Picker,” and was the one which defendant desired plaintiff to order for him. The rule is also well established that, where a known, described and definite article is ordered of a dealer, although it is required for a particular purpose, still, if such article be actually supplied, there is no implied warranty that it shall answer the purpose of the buyer. Oil Creek Gold Mining Co. v. Fairbanks, Morse & Co., 19 Colo. App. 142, 74 Pac. 543; Cosgrove v. Bennett, 32 Minn. 371; Goulds v. Brophy, 42 Minn. 109; Ehrsam v. Brown, 76 Kan. 206, 15 L. R. A. (n. s.) 877; Davis Calyx Drill Co. v. Mallory, 137 Fed. 332. Under the facts as shown by the record, it was reversible error for the court to instruct the jury
For the foregoing reasons, the judgment of the district court is reversed and the cause is remanded for further proceedings.
Reversed.
Concurrence Opinion
concurring.
I concur in the judgment of reversal upon the sole ground that the fifth instruction should not have been given, for the reason that it informs the jurors that there was an implied warranty that the machine was reasonably fit for the purposes for which it was sold. The evidence seems to the writer to be conflicting, but will justify a finding that defendant did not rely entirely on his own judgment in purchasing the chattel, but depended upon plaintiff to furnish him a machine that would be of some practical service. Plaintiff’s agent, although denying that the machine was warranted, testified: “Well, in this case it was only warranted against defective material and workmanship, against breakage,” so that there was not an entire absence of warranty. It does not seem to the writer that the evidence is conclusive that defendant ordered a McCormick corn picker. Plaintiff’s agent, through whom the sale was made, makes no such claim. Defendant testified that he knew that plaintiff handled the McCormick machine, but he stated that he did not know where or from whom they would secure him one, but said: “I told him that we wouldn’t quarrel about the price if he could get one, so long as it workedIt seems to me that this is not a case for the application of the “known, described and defined article” rule. It will be observed that defendant did not have an opportunity of examining the machine before the order was sent. Whether a sale was consummated before the' machine arrived in Overton, the record does not plainly disclose. If, before paying anything on or accepting the machine,
■ The rules relative to the existence or nonexistence of implied warranties are succinctly set forth in Jones v. Just, L. R. 2 Q. B. (Eng.) *197, and it seems to me that the instant case should have been submitted to the jury to say whether the facts warranted the application of the fourth .or fifth rule there stated; that is, whether in making said purchase defendant, without an opportunity to inspect the chattel, bought it, relying on the judgment of plaintiff to secure him a machine that was reasonably suited for picking corn. If he did, he had a good defense to this action, and, if he did not, a judgment in his favor cannot be sustained.
Dissenting Opinion
dissenting.
I do not believe the verdict in this case should be disturbed. The jury was fairly instructed upon both the plaintiff’s and the defendant’s theory of the case. It passed upon all the questions of fact from the evidence before it and found in favor of the defendant, and to my mind was justified in so doing. The judgment of the trial court ought to be affirmed.