184 N.W. 254 | N.D. | 1921
This is'an appeal from a judgment in favor of the plaintiff and from an order denying the defendant’s motion for a new trial. The action is one to recover the purchase price of a secondhand gasoline tractor plowing outfit alleged to have been sold and delivered to the defendant in the spring of 1919. It was tried to the court without a jury. The facts are as follows :
The plaintiff is a dealer in implements at Garrison, N. D.; the defendant, a farmpr living in the vicinity. In the fall of 1918, the defendant, being prospectively interested in the purchase of a tractor for the following year, talked with the plaintiff concerning the purchase of a 1912 model 45 horse power Mogul tractor which the plaintiff owned. The tractor, had been acquired secondhand and was then located 8 or 9 miles south of Douglas upon the plaintiff’s farm and some 25 or 30 miles distant from the defendant’s farm. They also talked of the purchase and sale of a 10-bottom lever lift Oliver engine plow which was at the time situated at Roseglen, about 16 miles from the location of the engine. The plaintiff and defendant went to look at the engine. It had not been .used that year, but the plaintiff stated, in answer to a query as to whether it would run, that one McDonald, who had previously run it for the plaintiff, said that he could start it in 15 minutes. The defendant inspected the machine particularly with reference to its bearings which, in his opinion, were not badly worn. Negotiations were renewed in February or March of the following winter, and some time in March an agreement was reached whereby the defendant agreed to pay $1,600 for the engine, the plows, and a cook car; the plaintiff agreeing to turn the engine over to the defendant
McDonald, with a helper, worked on the engine 8 or 10 days before attempting to move it on the road to the defendant’s place, and it required approximately 10 days more to move the engine to the defendant’s farm. McDonald accounts for the time consumed on the road by stating that the weather was rainy, the roads muddy, and that they got stuck several times. The defendant sent for the extension arms and other parts that could be more conveniently hauled than taken with the tractor. McDonald was paid for the work done on the tractor by Dumry, the plaintiff, and it seems that he made out a separate bill to the defendant Kryzmarzick for moving the machinery amounting to about $165, which account has never been paid by the defendant and is assigned to the .plaintiff in this action but not included in the complaint. McDonald purchased from the Standard Oil Company some kerosene and gasoline needed for moving the machine, and directed it to be charged to the defendant. The defendant denies that he authorized this, but he paid the bill. When the machinery reached the defendant’s farm, the plows were hitched on and McDonald started to plow. After going about 10 rods the engine stopped. McDonald says this was because the plows were not scouring, but the defendant contends it was because the engine did not have sufficient power to pull the plows. There were not as many plows attached as the engine was supposed to be capable to pulling. The engine had thus far been run on batteries, and as McDonald was leaving he took them off to use on another engine belonging to the plaintiff. Another ignition system was later put •on. At the time McDonald left the engine with the defendant, he stated
The trial court found in substance that the plaintiff warranted the engine to be in good working order; that the place of delivery agreed upon was the plaintiff’s farm; that delivery was made thereat according to the terms of the contract; that the defendant accepted the property and removed it to his premises; that the engine was not at the time in good working order as warranted; and, as a conclusion of law, it was found that while there was a breach of warranty there was not a sufficient recission of the sale contract. Judgment was entered for the plaintiff but without prejudice to the right of the defendant to bring an action for damages for breach of warranty.
We are of the opinion that the trial court erred in holding that there
The evidence, however, is conflicting, and the trial court found in favor of the plaintiff. It might therefore be reasonably urged that we should not disturb the finding of the trial court. Even though superior weight be given to the opinion of the trial court, in so far as credibility is involved, still we are of the opinion that the judgment is erroneous; for, in view of the facts which are clearly established, the case does not properly turn upon the technical circumstance as to where delivery was to be made or as to who was to pay the expenses of moving. Admittedly the engine, at the time it was moved, was not equipped with an ignition system. The plaintiff admits that he agreed to install the magneto in proper working condition,or furnish a new Atwater-Kent system. Up to the time the machine was left on the defendant’s place neither had been supplied, and consequently there was lacking a vital part of a gasoline or kerosene engine. It had been moved with batteries belonging to the plaintiff, and these were promptly taken for use on another of plaintiff’s engines. By the time an ignition
The supplying of these parts was clearly a condition precedent to the passing of title to the defendant, and any acts of his by way of participation in transporting the machinery or in changing the physical position for the purposes of convenience in facilitating a full performance of the contract cannot be said to constitute a waiver of their effect as conditions precedent. It is not shown that he made any inspection of the engine after the repairing was supposed to have been done and before McDonald started on the journey to his place. Clearly, he did not constitute McDonald his agent for the purpose' of accepting the engine. At most, his authority on behalf of the defendant was limited to the mere transportation of the machinery to his place. McDonald indisputably was employed by the plaintiff to put the engine into deliverable condition, and any judgment he exercised with reference to its running condition would be a judgment exercised on behalf of the plaintiff, not the defendant. Certainly McDonald was not constituted both judge and jury to bind both parties by his action. There is, in fact, no evidence that the defendant ever accepted the engine in its present condition or that he was willing to accept it until it was rendered capable of doing the work for which the plaintiff agreed to supply it. The burden of putting it in that condition remained all the time on the plaintiff, and this burden amounted to a condition precedent to the passing of title. And, as stated, in our opinion its effect as a condition precedent is not modified or waived by any participation of the defendant in the physical delivery of the property. It is true that delivery is one of the strongest circumstances indicative of intention to transfer title immediately. Williston on Sales, § 265. But where delivery of physical possession is made only as a step in the performance of the contract and for the purpose of better enabling the seller to perform his remaining obligations, the delivery is conditional only and does not control the pass
Since, in our opinion, title did not pass to the defendant, it is immaterial whether the contract was properly rescinded or not. The notice of purported rescission which was promptly given was at any rate sufficient to apprise the plaintiff that the defendant refused to recognize the contract as being any longer binding upon him in view of the failure to perform on his part.
For the reasons stated, we are of the opinion that the judgment in favor of the plaintiff is erroneous, and it is reversed. The case is remanded, with directions to enter a judgment of dismissal; defendant to recover his costs.