209 P. 986 | Mont. | 1922
delivered the opinion of the court.
The plaintiff purchased of the defendant a “rebuilt” Hart-Parr tractor, together with other machinery, under a written
The complaint does not set out the contract or the warranties in full, but they are contained in the answer, and a copy of the contract was admitted in evidence without objection. There is not any dispute as to the language of the warranties claimed. While it is difficult to determine from the complaint what was plaintiff’s theory of recovery, the complaint does not state a cause of action upon any theory other than that of an action for damages for the alleged breach of warranties claimed to exist by the contract in plaintiff’s favor. The case was tried by both parties and the court upon the theory that it was an action for damages for breach of contract of warranty.
The first specification of error is directed to the sufficiency of the evidence to sustain the verdict. The plaintiff declares on the contract, and he is bound by its provisions. Paragraph 5 thereof provides that “the above machine, if new, is purchased upon and subject only to the following warranty.” Then follow paragraphs 6, 7, 8 and 9, containing the warranties; paragraph 9 being: “The purchaser understands and agrees that there is no other warranty, express or implied, statutory or otherwise, relative to the purchase and sale of above machinery, and with reference to second-hand or rebuilt machinery it is agreed that there is no warranty.” This tractor was a “rebuilt” tractor, and therefore as to it it was “agreed that there is no warranty.”
Personal property may be sold with or without warranty; and the parties to a contract of purchase may expressly stipulate, as they did by the contract in this case, that the property sold is not warranted (Crampton v. Lamonda, 95 Vt. 160, 114 Atl. 42; 35 Cyc. 393.) This court must assume that the parties entered into the contract with their eyes open,
There being no warranty under the express terms of the contract as to the “rebuilt” tractor, the evidence as to any alleged breach of any warranty was clearly inadmissible and is to be disregarded. Plaintiff having grounded his cause of action upon a breach of warranty, and the contract not containing any warranty as to the tractor purchased by him, the contract specifically providing that “as to it there is no warranty,” there can be no recovery by him in this case.
We do not hold that plaintiff has no remedy against defendant if the defendant did not deliver to him the tractor or the kind of a tractor described in the contract, but plaintiff has elected his remedy, and, so far as this case is concerned, he is held to his election.
Because the evidence is insufficient to sustain the verdict, the judgment of the court cannot be sustained on any theory, and the other specifications of error need not be considered. It may be briefly stated, however, that it is impossible to reconcile the jury’s verdict with the court’s instructions, which became the law of the case so far as the jury was concerned in arriving at its verdict.
The defendant made a counterclaim against the plaintiff, based upon three notes totaling $1,500, representing a part of the purchase price of the tractor and other machinery sold. It alleged foreclosure of a chattel mortgage given to secure the payment of these notes, and that, after applying the proceeds of the foreclosure sale, there was a balance due defendant of $1,245.50, with interest and attorney’s fees, and during the
The judgment and the order denying defendant’s motion for a new trial' are therefore reversed and the cause is remanded, with instructions to the district court to enter a judgment in favor of the defendant and against the plaintiff upon the counterclaim, in the amount mentioned in the stipulation as due the defendant at the time of the trial.
Reversed and remanded.