145 P. 949 | Mont. | 1915
delivered the opinion of the court.
Action by Evan D.-Jones against Bart Armstrong, upon a promissory note given by the latter to the former for the sum of $800, with interest at eight per cent per annum. The answer consists of denials and “a further and separate defense” wherein it is alleged that said note was given in payment of an Emerson plow purchased of Jones by Armstrong for sod-breaking; that Jones, who knew of the purpose for which the plow was desired, warranted and represented the same to be capable of first-class work in that respect; that these representa
Upon the trial, which was to the court sitting with a jury, the plaintiff contented himself with the introduction of the note and testimony to the fact that it was due. and wholly unpaid. On cross-examination it was elicited by defendant’s counsel that the note was given in payment for the plow which he (Jones) had previously bought and used, and which had done satisfactory work for him.
The evidence on the part of the defendant was given by Armstrong himself and by the witnesses Hughes, Cawood and Price. Armstrong testified: “I went to see Mr. Price, and asked him if he had what is known as the Emerson plow, sod-bottom plow, and disc plow. He said he didn’t have one. He was the agent for this plow at Conrad at this time, and I asked him if he knew of one, if I could locate one. He said he thought Evan Jones over east of town had a plow that he wanted to sell. So Mr. Price drove me out there in his automobile, and we saw Mr. Jones and saw the plow. The plow at this time had the discs. It was not rigged for sod-bottom plowing. It was a three-section Einerson plow, susceptible of sod-bottom, as all are supposed to be, Mr, Jones made a price on this plow of $S0Q, Mr.
David Hughes testified: “I was plowing for Mr. Jones with an Emerson plow, sod-bottom breaking part of the time. * * * I don’t think the mold-board was not good plowing. This plowing was good. * * * The work did not suit Mr. Jones. * * * It was the bottoms — the mold-boards. * * * I had no experience before that in handling Emerson plows. I adjusted the cables on the plows. I don’t know the regulation length of the cable for No. 1 beam or No. 2; we adjusted them and changed them so as to try to make the plows work.”
Cawood testified that he “saw some ground that had been plowed by this Emerson plow. * # * The plowing * * * was poor. * * * I do not know what was wrong with the plow. * * * I do not know whether it was the fault of the plow or the .fault of the man that operated it that accounted for the bad plowing.”
Price testified that the plow was second-hand when sold to Mr. Jones and third-hand when sold to Mr. Armstrong.
At the conclusion of the testimony the plaintiff moved the court to direct the jury to return a verdict in favor of the plain
The only question presented is whether the evidence on the part of the defendant tended to establish any defense under the allegations of the answer. He contends that it did, upon what theory we are unable to precisely determine. The first part of his argument is devoted to a discussion of the right of rescission
The defendant also insists that he made a sufficient showing to go to the jury upon the theory of a breach of warranty; such warranty being both express and implied. Plaintiff argues that one cannot defend upon an express and implied warranty touching the same quality. This we need not consider, for reasons presently to appear. To begin with, no express warranty on the
As to the implied warranty, the defendant’s situation is no
Assuming, however, that there was a warranty of the plow as fit for sod-breaking, the evidence, we think, falls short of
We think the order directing a verdict for the plaintiff was justified. That being so, the judgment and order appealed from were correct and must be affirmed.
Affirmed.