65 Minn. 449 | Minn. | 1896
This was an action upon three promissory notes executed and delivered by defendants in part payment for a steam threshing machine. The defense set up in the answer was a breach of warranty of the machine, with a large claim for damages said to have been caused by the breach. The verdict was for defendants in a sum exceeding $1,000, and plaintiff appeals from an order denying anew trial.
From the evidence it appears that defendants ordered from the-plaintiff corporation, through the agents of the latter at Luveme, Minnesota, a threshing machine of a certain description, to be loaded on the cars at Bichmond, Indiana, on or before July 25, 1893, and shipped to Luverne. This order, partly printed and partly written, was in the usual form of such instruments, containing the customary warranty, with certain conditions to be complied with by defendants should the machine fail to fulfill the warranty. It also contained a condition
It was also testified to by defendants that, in consideration of their agreement to take another machine, the plaintiff, through its agents, verbally warranted it to be made of good materials, and that it would do good and satisfactory work; and they further claimed that no conditions of the kind we have mentioned, as contained in the order, were imposed upon them, should the machine in question fail to comply with the terms of the verbal warranty. As might be expected, plaintiff contended that there was no rescission or abandonment of the written contract, but that in filling the order it was not strictly complied with; that, in some nonessential particulars, changes were made which were satisfactory to defendants, and that the machine delivered was upon the order, and upon no other contract; that there was no warranty of any kind, except that found in the order itself; and that the machine was delivered and the notes given in accordance and as a compliance with the provisions of the order, not otherwise. This question, then, was for the jury, and while, from the undisputed evidence, it would appear that there was no material difference between the machine ordered and the one received, there was testimony tending to support the defendants’ contention that the contract embraced in the order was abandoned when plaintiff’s agents informed defendants that their order would not or could not be filled in strict accordance with its terms. In passing, we may here say that there was no proof that plaintiff ever accepted the order, and if it depends on the instrument itself, introduced in evidence, it is quite clear that it was not accepted in form.
Counsel for plaintiff make several other points in their brief in support of their claim that there should be a new trial. They contend that the written instrument was an unconditional sale of the machine therein described, that there was no consideration for the oral agreement said to have been made and that it was of no effect, because agents with power to sell have no authority to rescind, or to consent to an abandonment of, a contract already made with their principals. These claims are all answered by a brief recapitulation of the facts. Defendants gave an. order for a threshing machine of a certain description, turning in and delivering as part payment an old machine. It was expressly stipulated in the order that plaintiff, to whom the or
Counsel also make the point that there was no testimony offered tending to show that threshing machines are usually sold with a warranty; claiming that, because of this, defendants failed to establish a defense. If by this contention counsel mean that it was necessary for defendants to show that threshing machines are usually sold with a warranty, before it could be presumed that plaintiff’s agents were authorized to warrant the one over which this controversy has arisen, attention is called to McCormick v. Kelly, 28 Minn. 135, 9 N. W. 675; Deering v. Thom, 29 Minn. 120, 12 N. W. 350; Boynton Furnace Co. v. Clark, 42 Minn. 335, 339, 44 N. W. 121; C. Aultman & Co. v. Falkum, 51 Minn. 562, 53 N. W. 875.
Under one of their assignments of error, counsel have raised the claim that the verdict was clearly against the weight of evidence and was the result of passion and prejudice. This same claim was presented and disposed of below on the hearing of the motion for a new trial. As to the amount of the verdict, it may be said that it was strictly within the instructions of the court, to which counsel took no exception, and that it was warranted by the evidence. If the amount was large, counsel for plaintiff must bear in mind that they produced little or no evidence tending to contradict that of defendants as to the agreed price for the old machine delivered to plaintiff, and sold by it, the agreed price being stated to be $900, and no evidence whatsoever upon the question of the real value of the new machine, and, further, that they failed to cross-examine defendants’ witnesses who testified that it was worthless. If they chose to let all this testimony as to the price agreed upon for the old machine,
There are quite a number of assignments of error which we have not referred to. Upon examination we fail to discover that the trial court erred in any of the rulings covered by these assignments, and they need not be specially discussed.
Order affirmed.