58 N.W. 318 | N.D. | 1896
There is no conflict in the evidence in this case. There was a directed verdict for defendants. Motion for a new trial denied. Judgment upon the verdict, and plaintiff appeals. The action is upon certain promissory notes executed by respondents to appellant. The notes had been secured by a chattel mortgage. The mortgaged property had been seized and sold, and the amount realized credited upon the notes, and this action is for the balance. The notes were given for the purchase price of a grain separator. The issues arise upon the allegations in the answer that the notes were delivered conditionally only. The answer also alleges that time of payment was extended. It appeai-s that on August 31, 1893, the respondent J. K, Green
Fargo, August 21, 1893.
“The undersigned, residing in Cass County, State of North Dakota, this day o^der of Gaar, Scott & Co., Richmond, Indiana, through Magill & Co., agent at Fargo, N. D., one 40 inch cylinder, 58 inch separator, flax and timothy riddles, threeway crank thresher, with truck wagon and folding stacker, and all small belts, and one Fargo weigher and wagon loader. In consideration whereof, the undersigned agrees to receive the same on its arrival, subject to all the conditions of the warranty printed below, pay freight and charges thereon from your factory, and also agrees to pay to your order, at the time and place of delivery, the sum of six hundred and thirty ($630.00) dollars, as follows: Cash on or before delivery, $-; note due October 1st, 1893, for $140.00, with interest at eight per cent; note due October 1st, 1894, for $210.00, with interest at eight per cent; note due October 1st, 1895, for $200.00, with interest at eight per cent; note due October 1st, 1893, for $80.00, with interest at eight per cent. Said notes to be made payable to Gaar, Scott & Co. And I further agree, at the time and place of delivery, to give in security of said notes, a first mortgage on the above named machinery, and on the following other property or further approved security, viz.: 14 horse Buffalo Pitts plain engine; one grain tank. * * *
“Warranty: The machinery furnished'on this order is warranted to be made of good materials, well constructed, and, with proper use and management, to do as good work as any other of the same size and rated capacity made for the same purpose. If, inside of six days from the day of its first use, it shall fail in any respect to fill this warranty, written notice shall be given immediately by the purchaser to Gaar, Scott & Co., at their home office, Richmond, Ind., and written notice also to the local agent through whom the same was received, stating particularly what parts and wherein it foils to fill the warranty, and a reasonable*51 time allowed the company- to -get to the machine with skilled workmen, and remedy the defects, if any there be (if it be of such nature that a remedy cannot be suggested by letter;) the purchaser to render all necessary and friendly assistance and co-operation in making the machinery a practical success. If any part of the machinery cannot be made to fill the warranty, that part which falls shall be returned immediately by the undersigned to the place where it was received, with the option in the company either to furnish another machine or part in place of the machine or part so returned, which shall perform' the work, or return the money and notes which shall .have been given for the same, and thereby rescind-the contract pro tanto or in whole, as the case may be, and be released from any further liability whatever herein. * * * • It is further mutually understood and agreed that use of said machinery, after the expiration of the time named in the above warranty, shall be evidence of the fulfillment of the warranty, and full satisfaction to the undersigned, who agrees hereafter to make no other claim on Gaar, Scott & Co.; and, further, that if'the above machinery, or any part thereof, is delivered to the undersigned before settlement is made for same, as herein agreed, or any alterations or erasures are made in the above warranty or in this special understanding and agreement, the undersigned waives all claims under warranty.”
This contract was signed by J. K. Green, and accepted by appellant. We gather from the record, although not expressly so stated, that the machine was in Fargo when the order was given; that it was at once delivered to J. K. Green, who took it to his farm, without executing the notes and mortgage. The machine was tried for about two weeks, and found to fail to work as warranted. Magill & Co., the agents, sent several men out to try and make it work properly, but without success. J. K. Gxeen testifies: That he told the agent that he “would not take the machine, because it was no good.” That the agent proposed that they would “put the machine in good order the next year, to do as good work as any other machine, and just as much of it; that, if
On this testimony, each party moved for a directed verdict. Appellant’s motion was denied, and respondent’s granted. We think this was error. It is perhaps true, as urged by respondents, that the maker of a note may place the same in the hands of the payee, and such delivery be so far conditional that no liability upon the notes in the hands of the payee will arise until the specified conditions are performed. Benton v. Martin, 52 N. Y. 570; Reynolds v. Robinson, 110 N. Y. 654, 18 N. E. 127; Bank v.
But respondents are not in a position on this record to avail themselves of these principles. J. K. Green bought the machine under a written contract, which included a warranty on the part of the vendor. By the terms of that warranty, he agreed that, in case said machine, or any of its parts, failed to operate as warranted within six days after its first use, he would give written notice of the defect to the home office of the vendor, and also written notice to the agent from whom the machime was purchased, to the end that efforts might be made to remedy the defects, and, if not remedied, the defective machine or part must be returned to the place where received. He further agreed that use of said machine after the expiration of the six days should be evidence of the fulfillment of the wari'anty, and that he would thereafter make no other claim upon the vendors.. The improvidence of such a contract as applied to threshing machinery is most glaring. It cannot be tested until the crop is ready for
One other point: E. E. Green signed the notes, and is sued jointly with J. K, Green, and they answer jointly. E. E. Green
The judgment of the District Court is reversed, and a new trial ordered.