55 N.W. 580 | N.D. | 1893
Lead Opinion
The basis of this action is the rescission of a contract for the sale and purchase of a twine-binding harvester. The plaintiff purchased the property of the defendant for $110, giving his negotiable promissory note therefor. Upon the sale a written warranty was given to plaintiff by defendant. Plaintiff, claiming that the harvester was not as warranted, returned the machine, and brought suit to recover the purchase price, alleging the defendant had negotiated the note before maturity thereof. One of the defenses set forth in the answer was estoppel by record. This defense was struck out on motion at the trial. We are thus compelled to determine its sufficiency. It set up, in substance, that the note was transferred to the First National Bank of Whitewater, Wis., and that suit was brought upon it by the bank before a justice of the peace, and that in that suit the defendant therein, and the plaintiff in the case at bar, relied as a defense upon the same breach, of warranty, followed by the same rescission of the contract of purchase, which constitutes the groundwork of his cause of action in this case. Judgment was
It is urged that the court erred in striking out what is designated as the equitable defense in the action. On the theory that plaintiff might be able to show, on a new trial, a waiver of the condition requiring notice to be sent to the home office, we will refer to this point. The time theory of this action is that the consideration for the $110 note failed because of a breach of the warranty, followed by the performance by the plaintiff of all the conditions of the warranty, and by a complete rescission, and that it then
For the error of the court in refusing to take the case from the jury, on the ground that plaintiff had failed to comply with the condition of the warranty requiring written notice of the defect to be given to the company at their office in Whitewater, Wis., the order denying motion for a new trial is reversed, and a new trial is ordered.
Rehearing
ON REHEARING.
We have carefully considered the petition for rehearing, but are unable to agree to the view therein stated, and which appears -to have been the view of the learned trial judge. The contention in the petition is that sending out these experts was a waiver of the provision requiring notice to the company at the home office; or that a reasonable man would be justified in construing it as a waiver. They were sent out to remedy such defects as the company should decide to remedy, and not to make that decision for the company in any particular case. It was convenient and even necessary to have them so near their field of labor that they could readily do the work which the company might decide to do. But so placing them that they would be reasonably close to whatever work they might be called upon to perform was no evidence of a purpose to do away with the provision requiring notice at headquarters. Nor could it be construed by any reasonable man as a waiver of such notice. They were not sent out as business managers to decide whether in a given case an alleged defect should be remedied, — whether the company in case of breach of warranty would furnish another machine, as it might under the contract, or remedy the defects in the one sold; they