J. I. Case Threshing Machine Co. v. Huber

160 Mich. 92 | Mich. | 1910

Ostrander, J.

(after stating the facts). The contract of the parties is one of sale of a chattel. The engine was bought and paid for. Title to it passed to the vendee, and at any [time he might have sold it to another. The engine was sold with express, but conditional, warranty. A trial of the engine was required; notice of improper performance, or of defects, was required, and it was one of the conditions that the seller, at its option, might return the purchase price or replace the engine, or any part of it. The vendee was obligated to render friendly assistance to efforts of the vendor to make the engine perform as it was warranted to do. Another condition was that the vendee should return the machine to the place where he received it. There was the necessary trial and the notification. It will be assumed, for the purposes of this discussion, that the engine was not as warranted. Reasonable friendly assistance was furnished by the vendee. It would be wholly unreasonable to require the vendee to indefinitely postpone his right to return the machinery, meantime assisting the vendor, whenever called upon, in efforts to make the engine perform. What the vendee did not do was to return the engine to Charlotte.

The vendee has been permitted to recover from the vendor the entire purchase money and interest, not upon the theory of a recoupment of damages for breach of the warranty, but upon the theory that there had been no acceptance of the engine, and that consideration for the purchase price had wholly failed. The question is whether, nevertheless, the judgment may be and ought to be sustained. I think it ought to be affirmed, for the following reasons: The condition that the vendee shall return the machinery “to the place where received ” is one which may be reasonable and enforceable in many cases. If the vendee receives the chattel from an agent of the vendor, at a warehouse maintained by the vendor, the condition may be specific enough, and in such cases it must be complied with. But when machinery is received from a railroad company, upon the premises of the company, how shall the vendee comply with the condition ? No other place of return is suggested in the brief for the plaintiff. He ought not to be required to commit a trespass in order to comply with a condition which is imposed for the benefit of the vendor. He ought not to be required to negotiate with the railroad freight agent for permission to leave a traction engine on the premises of the company. He ought not to be required to assume the position of a consignor of the machinery, or to pay charges. In principle the point is ruled by Osborn v. Rawson, 47 Mich. 206 (10 N. W. 201), and Westinghouse Co. v. Gainor, 130 Mich. 393 (90 N. W. 52).

This ruling renders unimportant the contention that the directions of plaintiff’s agent, testified to by the defendant, as to the disposition of the engine changed or varied the contract. There was testimony tending to prove that the engine was without value for the use for which it was purchased. It is unimportant that for old iron it may have some value, or that it may be dismantled, and parts of it be sold or used elsewhere. We are therefore able to say that the real issue was in fact tried without any error which would have affected the result if it had been tried upon a proper legal theory. No other or different testimony would have been or could properly have been produced by either party. Defendant is in no position to accept the result and deny to the plaintiff the right to take the engine. Upon the facts found by the jury costs must, in any event, have been paid by the plaintiff. Under the circumstances we do not feel obliged to reverse the judgment and to order a new trial.

The judgment is affirmed.

Montgomery, C. J., and Moore, McAlvay, and Brooke, JJ., concurred.