4 Dakota 92 | Supreme Court Of The Territory Of Dakota | 1885
This action was brought in the court below to recover upon two promissory notes executed by the respondent to the appellant. The defendant (respondent here) in his answer admits the execution and delivery of the notes, but alleges as a counter claim that said notes, with two others, were given for and in consideration of one ten horse power threshing machine, known as the ‘‘J. I. Case Eclipse,” of the manufacture of 1877, theretofore sold and delivered to the defendant under a representation and warranty by the plaintiff at the time said machine was sold to the defendant. Said warranty was in writing, and is as follows:
“The above machine is warranted, with proper usage, to do as good work in threshing and cleaning grain as any other made in the United States, and to be of good materials, and durable, with proper care. If the above machine will not bear the above warranty after a trial of two weeks, written notice shall be given to J. I. Case & Co., or the agent of whom purchased, stating wherein it fails to satisfy the warranty, and reasonable time shall be given J. I. Case & Co. to send a competent person to remedy the difficulty; the purchaser rendering necessary and friendly assistance. If the machine cannot be made to fill the warranty, it is to be returned by the purchaser to the place where received, and another substituted therefor, that shall fill the warranty, or the money and notes be immediately returned.*95 In consideration whereof, the undersigned agrees to receive the same on arrival, and to pay freight and charges, and also, on delivery, to pay to your agent the sum of six hundred and fifty-three dollars, as follows: Cash, $-in hand on delivery, and notes with approved security as follows, said notes to draw ten per cent, interest per annum from date until paid: Note for $100, due January 1, 1878; note for $200, due November 25, 1878; note for $200, due November 25, 1879; note for $153, due November 1, 1880.
Geo. W. Vennum,
Jamestown, Stutsman County, Dakota.”
The defendant further alleges that ‘ ‘he then accepted said machine for the purpose of threshing a large quantity of grain owned by himself, and also to use in threshing the grain of any one who might desire the services of said machine; and that he, the said defendant, accepted said machine, trusting implicitly in said representations and warranty of the plaintiff — all of which the plaintiff well knew; that the same was not the kind and quality of machine purchased, nor such as it was warranted to be by the plaintiff as aforesaid, nor would it answer the purpose designed, in this: that, contrary to said warranty, said machine would not do good work, would not thresh any kind of grain clean or in a workmanlike manner, etc.; “that the defendant, upon discovery that the said machine was not such as it was warranted to be as aforesaid, offered the same to the plaintiff, and notified the plaintiff where said machine could be found and was being held subject' to plaintiff’s order, and demanded of the plaintiff that his said notes be returned to him, the defendant; and said defendant alleges that said machine is still held by him for the plaintiff — all of which the plaintiff had notice. Wherefcre, defendant demands damages in the sum of six hundred dollars.”
There is no allegation in the answer, nor does the testimony show, that the defendant complied with and performed the concurrent obligations imposed upon him by the terms of the warranty. It does not appear that, after a trial of two weeks, the defendant gave notice in writing to J. I. Case & Co., or to
It is a fundamental principle of law, that has never been departed from by any respectable court, that when the obligations of an express warranty are concurrent, either who seeks to enforce the obligations of the other must prove performance on his part, or an offer to perform. Abb. Tr. Ev. 313; Dunham v. Pettee, 8 N. Y. 508; Nichols v. Knowles, 18 N. W. Rep. 413; Wendall v. Osborne, Id. 709; Warden v. Sycamore Harvester Co. 7 N. W. Rep. 756.
It would work great injustice if the purchaser is at liberty to disregard the terms of the contract which he subscribes to, and is permitted, under such a warranty, through his own mere whim or caprice, or for any cause, after a continued use of the machine, to deposit it in his barn, and, by notifying the vendor that it did not fill the warranty, and is subject to his order, to escape responsibility. To guard against this injustice was the intent of this contract.' The judgment of the purchaser was not to settle the working qualities of this machine; that was a question that could only be determined by persons chosen by
It follows, from these views, that the judgment of the court below must be reversed.