87 N.W. 993 | N.D. | 1901
In this action plaintiff seeks to recover damages-from the defendant on account of his refusal to comply with a certain contract for the sale of a threshing machine outfit, including separator and accompanying attachments. The contract was in writing, and signed by the defendant. It was an order for a separator and necessary attachments, dated on June 14, 1899, and it contained a detailed contract for the purchase of the same.- The defendant therein agreed “to pay the advance freight on the machine and attachments, ordered herein,” and therein further “agreed to receive the above-described machinery on arrival.” The order also provided that the defendant was to give to said plaintiff certain secondhand machinery and his two notes, for the sum of $360 each, as-purchase price,and to secure such notes by chattel mortgage upon property specifically described therein. The security was to be given before the purchased machinery was to be delivered to the defendant. No .question is made by the defendant as to the making of, nor as to the terms of, the contract. The complaint states a cause of action for a wrongful refusal to comply with the terms of such contract, and claims damages on account of such refusal in the sum of $38, freight necessarily paid, and the further sum of $390^ as general damages for the breach of the contract, and demands judgment for the syim of $428 and interest. The answer was a general denial. At the close of the taking of the testimon)'’ the trial court directed a verdict in favor of the plaintiff for the sum of $372.08. The defendant excepted to such direction of a verdict. Judgment was duly entered upon such verdict. A statement of the
A brief statement of the evidence will be necessary for an understanding of the case and of the errors assigned. The agreed price of the machinery purchased was $930. Secondhand machinery w.as to be accepted as part payment of this $930, and such secondhand machinery was of the agreed value of $210. Two notes and a chattel mortgage were to be given for the balance; that is, for $720. The security agreed to be given for the payment of these notes, aside from the purchased machinery, was as follows: One 25 horse power Pitts traction engine, bought in 1897; six good work horses. The defendant was notified of the arrival of this machine as soon as it arrived. Pie called at the office of,the plaintiff’s local agents at Walipeton, and had a conversation with one of such agents. The gist of this conversation was that he (defendant) was not'satisfied to give security on the horses, and thought the security was too much; that he thought security on the engine enough; that he then refused to give security on the horses. Later the same conversation, substantially, occurred between defendant and the other member of plaintiff’s local agents. At this last conversation the defendant offered to take the machine purchased, if allowed to give security on the engine and the machinery bought, without including the horses. This offer was refused for the reason that there was already a mortgage of $600 on the engine. At this last conversation he refused to carry out the contract as entered into on June 14th, and further negotiations ceased in reference to the transaction. This refusal occurred on August 17, 1899. There is no conflict between the parties as to what occurred 'during these negotiations. Seven assignments of error are urged as grounds for a reversal of the judgment.
The first assignment of error is based upon the fact that the trial court permitted plaintiff to prove that it had paid the freight charged, through its agents, and allowed such payment as an item of damages recoverable against the defendant. In the contract the defendant specifically agreed to pay all freight charges in advance. The plaintiff appropriately pleaded damages on account of such payment. The object of the suit was to recover damages that would compensate plaintiff for every detriment caused by the failure of the defendant to fulfill his contract. The plaintiff will be compelled to pay these freight charges, and could not fully be compensated as to its damages unless this outlay were allowed in its favor.
Error is urged because the court sustained an objection to the ■ question asked of the defendant to the effect that he should state the circumstances under which he signed the contract. We think there was no error in sustaining this objection. There was nothing pleaded in the answer to which an answer to such a question would have been responsive. The defendant had previously admitted in his testimony that he had signed the contract. Nothing was pleaded or suggested to the effect that there was fraud, duress, or mistake in the execu
It is also assigned as error that the court sustained an objection to a question asked of defendant as to the value of the machinery purchased by him of the plaintiff. Thg objection to the question vvas that the defendant had not shown himself competent to testify as to such value. The only evidence on which he based his competency to so testify was the following: “My business is farming and threshing. I have been engaged in the threshing business 25 or 30 years.” No testimony that he had any knowledge concerning the value of any kind of machinery, nor that he was ever engaged in buying or selling such machinery as was involved in the subject of the inquiry. No valid reason can be urged in favor of admitting his answer to such question, in view of the meager foundation laid. Furthermore, it was the market value of the machinery at the city of Wahpeton at the time of the refusal to comply with the contract that was in issue in the case. The question asked called for an answer as to the value of the machinery, no time being given.
The remaining assignments may be considered together, as they involve the same subject, — the refusal of the trial court to submit the case to the jury. As before stated, it appears from the evidence that the defendant offered to take this machinery about the time of his refusal to comply with the contract of purchase if the plaintiff would accept security the same as originally agreed upon, less the security on “six. good work horses.” This the plaintiff refused to do, because there was a $600 unpaid mortgage on the engine which was a part of the offered security on this proposed new contract. The appellant now claims that this offer should have been submitted to the jury, as it was for the jury to determine whether or not this offer to repurchase was such an offer as a reasonabfy prudent person engaged in the business of selling machinery in the city of Wahpeton should have accepted. His contention is that the plaintiff was under a legal duty to so act as to reduce the defendant’s damages on account of his failure to perform his contract to the very lowest sum, and he claims that, had he then resold the machinery to defendant, no damages would have resulted. . Under the facts of this case we cannot accede to either •of these propositions. Immediately upon the refusal of the the defendant to receive the separator and attachments, the plaintiff was wholly absolved from any such duty towards the defendant in respect to the transaction. Defendant had broken his contract, and plaintiff could not legally be forced to deal with him on the basis of less security, which he deemed insufficient and liable to be followed by loss. The title to such property was still in the plaintiff. He could deal with it, under the facts of this case, as though he had never contracted to sell it to the defendant. He ■could not, of course, sell the property wrongfully and at a sacrifice,
The defendant claims that, inasmuch as this property was sold on credit in the first instance, a resale should have to be made according to the custom existing in the Wahpeton market, t.nd, as substantiating such contention, showed that threshing machines are there sold on credit in a majority of cases, and that such sales on credit are the usual custom. We do not think that such custom can affect this case. No custom was shown that sales or resales are there made on security that is not acceptable to the person selling. He cites the' case of Pollen v. Le Roy, 30 N. Y. 549, as in point. We do not so interpret it. In that case the plaintiffs resold the property after the defendants had refused to receive it, and the court held that the resale must be made in good faith, and under a proper observance of the usages of the particular trade. In that case the defendants claimed that the propert)'- should have been sold'by auction. The court says: “The ordinary usage of the trade is to effect sales of pig lead through the negotiation of brokers. This usage the plaintiffs were bound to adopt, to obtain the full and fair value of the article.” Certainly this cannot be an authority that the plaintiff in this case must resell upon security deemed .by him insufficient.
The contract price was not in dispute, nor the fact of a breach of the contract. The market value of this property at Wahpeton at the time of the refusal to receive it under the contract was also an undisputed fact. Hence there was no question of fact in dispute in the case. No error was committed at the trial.
The judgment of the district court is affirmed.