61 N.W. 145 | N.D. | 1894
The plaintiff bases this action upon defendants’ promissory note for $470. Defendants answered the complaint, admitting the execution and delivery of the note, and that it was unpaid; and, further answering, allege that the note was given for the purchase price of a separator sold by plaintiff to defendants with a warranty, that there was a breach of such warranty, and that the separator was of no value whatever as a separator. Defendants’ answer also embodied a counterclaim, as follows: “That on or about the 1st day of September, 1891, they bought from plaintiff the certain separator hereinbefore referred to; that plaintiff represented and warranted that said separator was as good as any separator made, and would do as 'good work as any;
The only error assigned in this court, which we shall deem it necessary to notice, is “that the court erred in granting defendants’ motion for a new trial.” At the trial, after introducing the note in evidence, the plaintiff rested its case, and in rebuttal put
In support of defendants’ counterclaim, W. H. Lincoln, one of the defendants, testified as follows: “We had not threshed over half a day before the machine gave us trouble. We notified the company at Fargo that the machine was not giving satisfaction, and to send out a man to fix it. This was after we had used it half a day. They sent out an expert. The difficulty of the machine of which we notified the company was, it was carrying the grain over into the straw, and not cleaning it properly. I told the agent who came out to fix it what the trouble was. We were threshing at the time he arrived, and he saw the machine work. I stopped the machine, and he looked it over, and said he could not fix it, because he did not have the material to fix it. He admitted that it needed fixing, but he did nothing to it. He said that he was going to Fargo, that night, and would send a man right out. They did send a man within two or three days. He took his tools, and went into the machine, and tried to fix it, but gave it up as a bad job. He said, T cannot fix it.’ I understood the man to mean he could not stop the machine from throwing grain over into the straw. I simply understood that he himself could not fix it, and make it do good work. I didn’t know the agent’s name who came out there. He was a man sent out there, as I supposed, to repair and look after machines at work in the field. It was not any one with whom we had a contract or any other understanding or agreement for the purchase of the machine. Q. What did you say to the agent upon his notifying you that he came there to fix the machine? A, I told him that
At the 'close of the testimony, the plaintiff, by its counsel, moved the court as follows: “The plaintiff, by its counsel, at this time requests the court to instruct the jury to find a verdict for the plaintiff for the amount claimed in the complaint, on the ground that the evidence failed to show a defense to the cause of action set forth in the complaint; that the evidence shows that the plaintiff fulfilled, upon its part, the conditions of the contract
We think the terms of the motion were sufficiently explicit under the rule requiring the grounds of such motions to be specified. The language of the motion, fairly construed, directed the attention of the court and opposite counsel, not only to the “contract for sale and warranty” in evidence. It further asserts that “the defendants by their own testimony, have established a waiver of all claims for damages or other defense arising from any breach of the warranty.” To decide the motion with reference to the grounds stated, it was necessary that the trial court should explore the testimony offered by the defendants, and to consider such testimony in connection with the written contract of sale and warranty, in order to ascertain whether or not it was true, as claimed in the motion, that such testimony showed a waiver of all claims for damages or other defense arising from any breach of the warranty. The testimony, not being contradicted, did show a breach of the warranty; but the difficult question remained, whether defendants had shown by testimony that they had waived “all claims for damages” arising from such breach. To determine this question it was necessary to carefully examine the writing which contained the agreement between the parties. We have already quoted the contract of warranty, and, when analyzed, it appears that it imposed upon the parties certain reciprocal duties and obligations. It declared: “That the buyer shall have three days after it is first started to ascertain whether said machinery is or is not as warranted and represented. If then it is not, he shall at once discontinue use of it, and state full particulars wherein it fails, by letter mailed at once to the seller at Stillwater, Minnesota, and wait until seller gets a man there to right it.” It is noticeable that this agreement, unlike many machine contracts which had been drawn into litigation, nowhere
Counsel for defendants contend that the stipulation requiring notice to the seller to be sent to Stillwater, Minn., has been waived. No express waiver is claimed to have been made, but it is urged that the facts disclosed by the evidence show a constructive waiver of notice by the plaintiff. The testimony shows that, within two days after the notice was mailed to Fargo, an expert appeared at defendants’ premises, claiming to represent the plaintiff, and examined the machime, but did not attempt to remedy the trouble; that the expert went away, and, within a day or two, a second expert came and attempted to repair the machine, but failed to do so, and a third came, and made an unsuccessful attempt to put the separator into working order. The last expert, it appeared, came in response to an oral request made to a member of the local agency at Fargo by one of the defendants. The fact that the experts came in response to the notice sent to Fargo, and attempted to remedy the defect in the separator, is relied upon as a waiver of the requirement as to notice; and, the
The case cited is pressed upon our attention as being decisive of this case, and it is claimed that under the authority of that case we should hold that the defendants here must fail because in this case, as that cited, no notice was in fact sent to the headquarters office. But the cases are not parallel in their facts. In the case cited, the company introduced affirmative testimony, which was
But the grounds of the motion were an alleged waiver on defendants’ part of all claims arising upon a breach of warranty; and proceeding now upon the assumption that a proper notice was sent to and received at the Stillwater office, and that the
The evidence discloses that the position of the defendants when the experts ceased their efforts without repairing the defect was extremely difficult, and one which presented an embarrassing alternative. It appears that defendants were convinced, after the second expert went away without having benefitted the machine, that the separator was incurably wasteful; and, having reached this conclusion, they determined to purchase another machine, and one of them went to Fargo for that purpose, but found that no other could be had, because at that time none were in the market. In this dilemma defendants were forced to allow the remainder of their large crop to go unthreshed and be lost, or, on the other
But our attention is directed to the following testimony of the witness Lincoln: “I had one talk with Mr. Hughes some time during the threshing season, and I think it was after the last expert had been out to the farm. I told him that the machine was not doing what it ought to; that it was a failure, in my estimation; and Mr. Hughes said that the machine could be fixed properly; he was sure it could be fixed; that the company would do what was right with the machine; and that, if they could not fix it, they would furnish us with another machine.” The claim is made that this talk of the local agent so operated upon the written contract as to extend the stipulated time fixed by contract for the return of the machine, and in its effect gave defendants leave to retain the machine for an indefinite period, and until they were further notified, or informed that the company could not fix the machine. We cannot so construe the conversation. Mr. Hughes gave his individual opinion to the effect that the separator could be fixed, and that the company would fix it. But it nowhere appears that Mr. Hughes was an expert, or had special skill in repairing machines; nor did he assume to say
In conclusion, it should perhaps be explained that this opinion is written after full argument upon a rehearing. Our conclusions as to the disposition of the case proper to be made have not been at all changed by the reargument, but, on the contrary, have been much strengthened. In the former argument our attention was not especially drawn to the grounds of plaintiff’s motion to direct a verdict, and accordingly, upon the first argument, we did