139 Minn. 103 | Minn. | 1917
The facts in this case briefly stated are as follows: By a contract between the parties of date December 28, 1914, defendant, who was engaged in business under the name of Superior Electric Manufacturing Company, sold and delivered to plaintiff certain personal property, then being upon and within the premises and place of business of the company, and described'in the written contract of sale substantially in the following language:
All the business and good will of said Superior Electric Manufacturing Company, including all machinery, furniture, fixtures, material and equipment of said company, except certain furniture and a typewriter and desk in that part of the premises occupied by defendant as a private office, and certain specified stock and material, and also certain dies and printing material belonging to the Bing Manufacturing Company.
At the time the contract was entered into, and when the premises and property were turned over and delivered to plaintiff, there was among the various items of property forming the equipment of the company an adding machine of the alleged value of $325. This machine was subsequently claimed by the Burroughs Adding Machine Company, the manufacturer thereof, and after due inquiry into the merits of the claim plaintiff surrendered the machine upon its demand therefor. Plaintiff thereafter brought this action to recover the value 'of the machine, as for the alleged breach of defendant’s warranty of title. He had a verdict in the court below, and defendant appealed from an order denying his alternative motion for judgment or a new trial.
It is contended by defendant: (1) That the complaint does not state facts sufficient to constitute a cause of action; (2) that the evidence does not justify a finding that the adding machine was included in the sale to plaintiff of the electric company equipment; (3) if the evidence be held sufficient to justify such a finding, then that plaintiff waived any right to complain of the failure of title by voluntarily surrendering the machine to the Burroughs Company; and (4) that the court erred in not granting a new trial on the ground of newly discovered evidence.
The further point in this connection, that the machine was in the defendant’s private office, therefore within one of the exceptions stated, was for the consideration of the jury. The evidence thereon is not such as to justify interference by this court.
This is well settled as the prevailing rule in this country. 15 Am. & Eng. Ehc. (2d ed.) 1252; Williston, Sales, § 221; 2 Mechem, Sales, § 1796; Johnson v. Oehmig & Wiehl, 95 Ala. 189, 10 South. 430, 36 Am. St. 204; Bordwell v. Collie, 45 N. Y. 494; McGiffin v. Baird, 62 N. Y. 329; Hodges v. Wilkinson, 111 N. C. 56, 15 S. E. 941, 17 L.R.A. 545; Clevenger v. Lewis, 16 Ann. Cas. note page 64; Matheny v. Mason,
Order affirmed.