100 Mo. App. 641 | Mo. Ct. App. | 1903
The defendant purchased, of the McCormick Harvesting Machine Company a corn-hinder for which he executed to the latter the three promissory notes sued on, and of which plaintiff has become the owner by assignment. Such latter, the machine company, at the time of the sale and purchase, entered into a contract with defendant to the effect that: “ ■ . . . If machine gives satisfaction, and if not will not take it. . . . This machine is warranted to be well made, of good material, and durable with proper care. If upon one day’s trial the machine should not work well, the purchaser shall give immediate notice to said McCormick Harvesting Machine Company, or their agent, and allow time to send a person to put it in order. If it can not then be made to work well, the purchaser shall return it at once to the agent of whom he received it, and all cash and notes received in settlement will be refunded. Continuous use of the machine, or’ use “at intervals through harvest
The defendant by his answer pleaded said contract and that he had tried said machine and it had failed to perform the work for which it was purchased; that it was of no value for any purpose; that he was dissatisfied with it; that he had offered to return it, etc. The replication was a general denial. There was a trial which resulted in judgment for the defendant and plaintiff appealed.
The appealing plaintiff complains of the action of the trial court in giving the defendant’s fourth instruction, which told the jury that the “defendant had the right, under his contract of purchase of said machine, to refuse to keep and pay for it, if he was not satisfied with it. If therefore you believe from the evidence that defendant was dissatisfied with it and his dissatisfaction was not feigned, but was real and honest, no matter whether his reasons for being dissatisfied were, in the opinion of the jury, good or bad; and that within a reasonable 'time after trial in the year 1900 defendant notified the agent of the McCormick Harvesting Machine Company that he was not satisfied with it, and offered to return it, your verdict should be for defendant. On the other hand, if you shall believe from the evidence that said machine did give .satisfaction to the defendant, then you shopld return a verdict in favor of plaintiff for full amount due on the notes sued on.”
. By the express terms of the contract the machine was to-give satisfaction, otherwise the defendant was not required to keep it. It is-true that there was a further provision that if upon one day’s trial it should not work well the defendant should give immediate notice to the machine company, or its agent, and to allow time to put it in order, and that if it. could not then be made to work well,-the purchaser should return it, etc.
Suppose there is' a choice between machines for cutting corn that work well. It may be that one which will work well may at the same time be heavier than another, or have more side draught than another, or it may be so geared as to require much more power to propel it than another, or its machinery may be complicated and so constructed as to easily get out of repair, or require greater skill and care in operating it than is at the purchaser’s command. -How can it be said that although it worked well, nevertheless it may not fail to give satisfaction? Or why should it be said where a bargainer has reserved the right to elect whether he be fully pleased or not, that he is bound to be pleased if another reasonable or intelligent man is pleased with the work of such machine?
It seems to us that under the contract the defendant had an option to accept or reject the machine, accordingly as it gave him satisfaction or not. We may quote as applicable here what was said in Wood R. & M. Machine Co. v. Smith, 50 Mich. 565, which was: “The cases where the parties provide that the promisor is to be satisfied, or to that effect, are of two classes; and whether the particular case at any time falls within the
A proper construction of this contract brings it within the first class of such contracts. Mfg. Co. v. Ellis, 68 Mich. 101; Platt v. Broderick, 70 Mich. 577; McCormick Machine Co. v. Cochran, 64 Mich. 636.
The defendant’s evidence tended to prove that the machine company endeavored, in both the season that defendant purchased the machine and in that following, to make the machine work well and give satisfaction, and after it had failed to do so, he offered to return it; but the agent of the machine company declined to accept it, saying that he would have nothing further to do with it. Defendant could do no more in that direction. The giving of the defendant’s instruction is fully justified by the great weight of pertinent authority. Blaine v. Knapp, 140 Mo. 241; Williams v. Railroad, 85 Mo. App. l. c., 1.10; Machine Co. v. Hardware Co., 85 Mo. App. 178; Campbell Printing Press Co. v. Thorp, 36 Fed. 414, and the cases there cited. The instruction fairly and fully submitted the entire case to the jury. The plaintiff’s instructions requested the submission upon what we think was an erroneous theory, and they were therefore properly refused. The case.cited by plaintiff from 14 Mo. App. 502, we do not think applicable here.
No reason is perceived for disturbing the judgment, which will accordingly be affirmed.