42 Minn. 368 | Minn. | 1890
The action is to recover the remainder of the purchase price of a harvester and binder, sold by plaintiffs to defendant. The answer alleges that the .sale to defendant was by sample, and that by the terms of the sale the machine delivered or to be delivered was to be equal in quality and description to the machine shown to him, and that it was not equal to said machine, and that on discovering the fact he notified plaintiffs thereof, and returned to them the one delivered him. It also alleges that on ‘such sale the plaintiffs warranted the machine to be properly made and constructed, .and of good material, and that with proper handling it would do good work in any grain, and as good as any other machine, and the answer then alleges a breach of this warranty. At the opening of the trial the plaintiffs moved that the defendant be required to elect on which of these two defences he would rely, the motion assuming them to be inconsistent. The court below denied the motion. It maybe that, if one of the defences were established, the other would be entirely unnecessary. But that is not a test of consistency in two defences. The test is, may they both be true ? It is only where, if one b e true, the other must be false, that there is an inconsistency. Roblee v. Secrest, 28 Minn. 43, (8 N. W. Rep. 904.) It is not impossible that both of these defences are true. There is even no improbability in the .facts alleged that it was agreed or warranted that the machine to be delivered defendant should be equal in quality and description with the one shown him, and that it was also further warranted that the machine sold was properly^made and constructed, and of good material, and that with proper handling it would do good work, etc. In purchasing such a thing the purchaser may require warranties in as many particulars as he pleases.
To prove their case plaintiffs introduced in evidence two notes signed by defendant, containing many stipulations by him, manifestly for the security of plaintiffs, among them that the condition of the sale of the harvester and binder for which the note is given is that the title, ownership, or right of possession does not pass from plaintiffs until the note and interest shall be paid. The plaintiffs then rested, and, on the defendant’s offering to prove by oral testimony the sale and the conditions and warranties alleged in the answer, the plain
On the trial it was conclusively shown, there being no evidence to the contrary, that the machine to be delivered defendant was, according to the contract of sale, to be of the same kind as a sample machine shown him; that it was warranted to do good work, and that it was agreed that if it should not be the same as the sample, or if it should not do good work, he might return it, and the cash payment and notes should thereupon be returned to him; that the machine delivered to him was not of the same kind as the sample, and that it would not do good work, and that upon discovering those facts he offered to return it, and, after keeping it for a time to enable plaintiffs to see if they could not make it work, he returned it. Upon these facts the defendant was entitled to the verdict rendered. The evidence offered by plaintiffs to prove the price or value of separate parts of the machine could not, if admitted, have affected the facts above stated, nor the rights of defendant upon those facts. The exclusion of that evidence could not prejudice plaintiffs, even though it might be erroneous, on the theory that defendant could only recover damages for a breach of warranty.
Order affirmed.