113 N.W. 605 | N.D. | 1907
This appeal calls in question the correctness of the rulings of the district court of Cass county in denying the defendant’s motion for a directed verdict and in directing a verdict in plaintiff’s favor, the real controversy involving the construction to be given to the following contract entered into between the parties, being plaintiff’s 'exhibit A:
“Conditions Upon Which We Accept This Order.
“That no claim for defective sh'ares or shovels will be made or allowed áfter same have been in a blacksmith forge. We take a clear receipt for all the goods we ship. If anything is lost or broken, the carrier is to be held responsible, and not us. No goods are to be returned except on our order. All orders are understood to be for right hand plows unless expressly stated otherwise. Repairing done elsewhere than at the factory will not be paid for by us. We reserve the right to withhold shipments of goods to parties whose standing we have reason to question, or for other ■reasons satisfactory to us. No orders to be countermanded except ■on payment to Morrison Manufacturing Company of 20 per cent of net amount of same as liquidated damages. No damage to be ■claimed by purchaser if Morrison Manufacturing Company are unable to fill this order and their notice to that effect will release purchaser and give him the right to place order elsewhere. Break.age caused by defects will be made good by new parts, which will . be charged for when sent, and a corresponding credit will be made only upon return of defective parts to the factory by freight. No*259 ■agreements, conditions, or stipulations, verbal or otherwise, save those mentioned in this contract, will be recognized. It is expressly agreed and understood that the title to the goods ordered herein and all other goods ordered this season shall remain in the Morri■son Manufacturing Company until they have been paid for in full; and said Morrison Manufacturing Company have the right to take possession of the goods and any notes that may have been given in exchange for them, if at any time they feel themselves insecure.
“Morrison Manufacturing Company.”
“Warranty Under Which We Accept This Order.
“Any goods reported as defective or not doing good work are not to be returned without orders. The right is reserved to send a man to examine, and, if necessary, to test the goods, and, if they work properly, the dealer to pay all expenses of the trip and test. If they' are defective, either in material or mechanism, the manufacturer is to pay all expenses. In no case will we repair, without charge, or exchange any goods or parts thereof, that have been in use three days. Goods warranted only against breakage caused by manifest defects in material, and no returned goods will be credited on account; but defective goods will be made good and returned, or new goods sent instead, at our option.
“Morrison Manufacturing Company.”
“Oct. 27, 1899.
“Morrison Manufacturing Company, Ft. Madison, Iowa — Please ■enter our order for the goods herein selected, delivering same on board cars at Minneapolis, Fargo Storage & Transfer Co., Fargo, N. Dak. Ship via N. P. R. R. in month of * * * at once, or within a reasonable time thereafter. We agree to forward you our notes for same within five days after receipt of goods, at prices and terms as noted herein, which are hereby made a part of this contract, for this and additional orders, during the fall season of 1899. Highest legal interest after maturity and-10 per cent fees if collected by attorneys. All extras and repairs net 30 days F. O. B. factory, unless expressly, stipulated otherwise. Twenty-five per cent off list published in current repair catalogue. We thoroughly understand that cash discounts are not to be allowed excepting on the dates marked on the several pages of this contract, and that any payments made after those dates, anticipating maturity, may*260 be discounted at the rate of 7 per cent per annum. We desire the control of your plows and cultivators in territory described on filing page, during -the season as noted above, and agree to handle no other make. We agree that this contract shall be subject to the conditions and warranty printed on opposite page. No claim will be made for goods damaged in shipment when same are receipted for in good order, or for shortage after five days from receipt of goods, or for breakage in hardened shares or shovels. It is agreed and understood that we will accept goods on arrival, pay all the freight and charges thereon, and, in case freight is agreed to be allowed, either in whole or in part, the original paid railroad expense bills shall be forwarded to Morrison Mfg. Co., and proper amount deducted from account at settlement, without interest and without claim for cash discount. No allowance to be made for express upon repairs and extras. We will look to transportation companies for all losses occasioned by damage to or failure to deliver any goods shipped when receipted for in good order. We will remit with exchange on New York or Chicago, or by express, charges prepaid, but in no case with our personal check. We hereby expressly agree that the title to and ownership of the within named goods, or that may be shipped as herein provided, shall remain, and the full proceeds in case of sale, shall be the property of the Morrison Manufacturing Company, but nothing in this clause shall release us from making the payments as herein stated. We further agree that all notes under this contract are to be taken a.s evidence and as an acknowledgment of the debt only and not as payment for the goods. The copy of this contract held by the Morrison Manufacturing Co. is to be considered the original'and to be the binding .agreement in case the duplicate varies from it in any particular. We acknowledge having received a duplicate of this contract and order.
“[Sign Here.] Fargo Storage & Transfer Co.,
“By M. F. Williams, Pr.
“Accepted subject to approval of home office of Morrison Manufacturing Co.
“P. J. Downes, Salesman.
*261 “Morrison. Riding Plows.
“Terms: -per cent, discount or net prices as indicated. Note due December 1st, 1899, subject to a cash discount of 10 per cent, if paid September 1st, 1899, or 15 days from date of shipment and per memorandum.
“Gang Plows.
Right Pland. Net Price. Fac’y Price.
Twenty 24-in. with two 12-in. Stubble.
Bottoms 4-in. Beams 775 lbs. $58.00 $85.00
40 — 14-in. Shares Free.
“Memorandum.
“Goods herein ordered unsold this season shall be due and payable same terms in 1900.”
In making this agreement a printed form was used, and most of its provisions are the usual printed provisions contained in blanks furnished for the purpose by respondent. The action was commenced and the complaint framed upon the theory that said contract constituted a sale of the machinery therein mentioned by plaintiff to defendant, while defendant’s assignments of error are predicated upon the theory that such contract was a bailment, or, in other words, that by the terms of said contract plaintiff delivered said property to defendant for storage and transfer merely, and that plaintiff never parted with the title thereto either absolutely or conditionally. Appellant’s contention is based upon certain language found in the contract, and also upon the subsequent conduct of the parties, as well as upon certain correspondence had between them, from which it is argued that the plain intent of the parties was to treat the same as a contract of storage and transfer, and not an absolute or conditional sale. Appellant concedes that, if such contract was one of purchase and sale, absolute or conditional, the verdict was correct, except as to the allowance of certain interest.
We have carefully examined this instrument, and have reached the same conclusion as that arrived at by the trial court. There Is nothing upon the face of the contract which would warrant a court in construing it otherwise than as a sale. The stipulations reserving the title in the vendor until a sale or until paid for by the vendee, and providing that the proceeds of such sale shall be and remain the property of the plaintiff until accounted for, are the usual security clauses frequently inserted in sale contracts, and
Appellant’s counsel makes a very plausible argument in support of his contention that, if the contract should be held to be ambiguous, the subsequent conduct of the parties demonstrates beyond question that they considered it a mere storage and transfer contract, and that such intention should control. While we con-> sider that the contract is clear and unambiguous, and hence that parol -evidence is incompetent to show that the parties intended to enter into a contract different from that disclosed by the instrument, we will briefly note the evidence introduced at the trial, in so far as it tends to throw light upon such intent. Certain correspondence was had between the parties after the contract was entered into, as follows: On June 28, 1900, appellant wrote respondent as follows. “We are in receipt of your favor of the 26th, and in reply will say that the situation up here is very serious. If this country gets back its seed and flour, it will do very well. We are of the opinion that rain coming after this will not help wheat or -oats. * * * Thousands of gang plows are running, plowing under wheat. In regard to plow trade this fall, will say that we do not 'expect to sell a gang plow this season. * * * Furthermore, if the farmers bought, the3 could not pay, so there would be no special object in selling, if they were willing to buy. * * * We did not want to let this matter run on until December, and then tell you that we could not pay. We know now that we will be unable to make collections for the goods we have sold, and we do not feel like putting out any more on this crop. * * * We will make this proposition to you, which is really the best we
The next correspondence in the form of letters between these parties was had on January 28, 1904, when respondent wrote appellant as follows : “Yours of the 26th received, saying that you have some gang plows belonging to us in your warehouse. There is a mistake about this, because we have no gang plows there. These gang plows were sold to the Fargo Storage & Transfer Co., and we have their written order and contract for the same, and it is long past due. We have been negotiating with them to try to get them to pay it up, but they have so far failed to pay, and we are preparing to commence suit against them and will push it with all the vigor we can to see who is right. We haye a clear and unmistakable contract covering this car of gang plows and our attorney says that it is perfectly^ good; so it is immaterial to us what you do with the plows, as we do not claim ownership, but we do claim that the company are owing us and we are going to bring suit. * * * Yours truly, Morrison Mfg. Co.” The above letter was addressed to the Northwestern Port Huron Company, the successors to the Fargo Storage & Transfer Company.
In 1901 certain statements of account were rendered by respondent to appellant as follows:
*266 “November 21, 1900.
“Fargo Storage & Transfer Co., to Morrison Manufacturing Co., Dr.
Nov.'7, 1899, To mdse................... $1,160 00
Dec. 1, By 19 plows O. H.......... $1,102 00
By disc, at 10% on $58..... 5 80
By cash ................... 52 20
$1,160 00 $1,160 00
1900 settlement.
“We send you this statement to be checked over with invoices represented herein so that any error may be detected and corrected before the time of payment as indicated on invoices and contract Kindly report at once any error.”
On December 4-, 1901, another statement was rendered as follows :
“Fargo Storage & Transfer Co., to Morrison Manufacturing Co., Dr.
Nov. 7, 1899, To mdse, for transfer....... $1,160 00
Credit ............. $52 20
Discount .......... 5 80 58 00
$1,102 00
Goods on hand:
19 M. B. gangs less 5 shares $1,102 00
Less 4 shares sold ... $14 00
33J-2 per cent ....... 4 66 9 34 1,092 66
$ 9 34 $ 9 34
On November 30, 1901, a statement was rendered, as follows:
“Fargo Storage & Transfer Co., to Morrison Manufacturing • Co., Dr.
1899 Nov. 7. To mdse................. $1,160 00
1900 Dec. 7. By cash .................. $52 20
By disc.................. 5 80 $ 58 00 $1,102 00
It appears from an inspection of the original exhibit, and from the testimony in the case, that the statement rendered on November 21st did not credit appellant with goods on hand, but that
From a careful consideration of the foregoing evidence, we would be unable to -say, even if such contract could be held to be ambiguous and therefore subject to be explained by parol, that the parties intended to enter into an agreement merely for storage and transfer. While some of the evidence, no doubt, has a tendency to prove this fact, it is quite apparent, from a consideration of all the evidence, that a sale, and not a bailment, was intended. The letter written on June 28, 1900, by appellant to respondent, clearly shows this. If the contract did not create the relation of debtor and creditor, and was not so understood by appellant, then why was the following language used in said letter? “We did not want to let this matter run on until December, and then tell you we could not pay. We know now that we will be unable to make collections for the goods we have sold, and we do not feel like putting out any more on this crop.” Surely the foregoing language is wholly inconsistent with appellant’s theory of the contract. If defendant was not to pay for the plows until it had collected from customers for sales made, why this letter? Under its theory, the crop conditions were of no concern to it. Again, in respondent’s reply thereto, dated June 30, 1900, respondent makes use of the following very significant expressions: “Yours of the 28th received, and we are quite surprised at the attitude you take. Gf course, we have carried these goods already for a year, and have had our money tied up in the material and labor represented by this shipment very nearly a year and a half already, as we have to make these goods up some time before they are shipped. We are not in a position to carry the whole load here, by any means, ánd as you have a very liberal contract with us, by which you have had the goods carried one year, which is not customary in our other
It follows, from what we have said, that appellant’s assignments of error should be overruled and the judgment appealed from affirmed; and it is so ordered.
