47 Minn. 183 | Minn. | 1891
The questions involved here grow out of a warranty of a threshing-machine made by the Minnesota Thresher Manufacturing Company, plaintiff’s assignor, on a sale of the machine to the defendant. The latter paid part of the purchase price by turning over to the thresher company an old machine, for which he received credit in the sum of $150, as part-payment of the purchase price at the time of the sale, and gave his notes, secured by a chattel mortgage on the new machine, for the balance of the purchase-money. This action is brought to enforce the chattel mortgage by reason of defendant’s default in the payment of the purchase-money. He is entitled to set up the breach of warranty, and the damages suffered thereby, as a counterclaim or set-off against the amount due on the notes, and to defeat the plaintiff’s action altogether if his damages are equal to the unpaid purchase price. His claim for damages is so far a cause of action growing out of the sale that he is entitled to have such claim considered and adjudicated in the action. The assignment of the mortgage was without prejudice to this right of set-off. The jury found specifically that the defendant’s damages were equal to the balance of the purchase price due, and generally for the defendant. There was no error in the rulings or instructions of the court on this branch of the case.
2. The following is the warranty which was incorporated in the written agreement of the parties to the sale: “It is agreed that the ■only warranty or representations binding upon the seller are as follows : First, that said machinery is well built, and, with proper management, capable of doing well the work for which it was intended, .and the engine of developing its rated power, conditional, however, that the buyer shall set up, start, and operate it in a proper and skilful manner, and without changing the original construction of any part of it. The buyer shall have three days after it is first started fo ascertain whether said machinery is or is not as warranted and represented. If then it is not, he shall at one discontinue the use •of it, and state full particulars wherein it fails, by letter mailed at •once to the seller at Stillwater, Minn., and wait until seller gets a
It will be observed by the terms of the warranty that the buyer is-to have three days after it was started to determine whether it conformed to the warranty. The seller, upon the specified notice, is to send a man “to right it,” and, after he is through, the buyer is to-give the machine a fair trial of two days, and whatever part is not as warranted he shall then return, etc. It is easy to see that the-brief period specified in the contract might, for various causes, prove-insufficient for a satisfactory trial, and that both parties might-deem further time necessary for a satisfactory determination of the character and operation of the machine, and, though the strict terms of the contract could not be waived by the subordinate agents of the company, yet the company itself could abrogate or waive the stipulations therein. Lamberton v. Connecticut Fire Ins. Co., 89 Minn. 129, (39 N. W. Rep. 76.) Conditions of this kind inserted in a contract, and involving forfeiture of a right to recover damages for a breach thereof, must be strictly construed. Westchester Fire Ins. Co. v. Earle, 33 Mich. 143, 151.
The principal assignments of error are disposed of in the foregoing discussion of the case on its merits, and the remaining ones do not, we think, require particular consideration.
Order affirmed.