60 Minn. 346 | Minn. | 1895
Lead Opinion
The complaint in this case is very brief, and therein it is alleged that on or about August 15, 1893, the plaintiff sold and delivered to the defendants, and each of them, at their special instance and request, one swinging stacker of the reasonable value of $290, and that no part of said sum had been paid, although the whole thereof had often been demanded. Judgment is demanded for that sum and interest. The defendants answered separately,, each setting up substantially the same defense, except that the defendant Edward Fritz alleged that he was a minor. The answers-allege that the defendants gave plaintiff a written order for a stacker, which was to be first class in all respects as to make and its workings, for which they were to pay $155 on December 1, 1893, but that said stacker was incomplete when delivered to defendants; that it was made of bad materials, and could not be operated; that it was of no practical value; and that they offered to return the machine to the plaintiff. The reply set up the written order dated July 31, 1893, given by the defendants, which is quite lengthy, and contains many provisions and conditions, and provides that the defendants shall execute a note for $155 for said machine, payable to-plaintiff December 1, 1893, and shall secure the same by a mortgage upon the machinery. Upon the trial the court below dismissed the action upon motion of the defendants.
It will be observed that the complaint is one for the reasonable
The order denying the motion for a new trial is therefore affirmed.
Concurrence Opinion
I concur in the result, but am of the opinion that, if the stacker had been wrongfully taken by defendants, plaintiff could waive the tort, and sue on implied contract, as it attempted to do; but it has failed to prove that the’ stacker was wrongfully taken. I am also of the opinion that, if it appeared that the defendants had refused to perform the contract on their part by executing the note for the price of the stacker when the same was delivered to them, the plaintiff could rescind the contract, and sue on an implied contract, as it has done. See notes to Cutter v. Powell,