88 N.W. 80 | N.D. | 1901
This is an action commenced in the district court of Rolette county, for the purpose of foreclosing two certain mortgages executed and delivered by the defendants, George Charlebois and Bolevard Brunut, to the plaintiff to secure the payment of three certain promissory notes, for $940 each, representing the purchase price of a certain threshing rig purchased by said defendants from
The following are conceded facts in the case:
On July 22, 1899, the defendants, Bolevard Brunut and George ■Charlebois, signed an order for this machinery, the material provisions of which are as follows: ' .
“Rolla, N. D., July 22nd, 1899. Nichols & Shepard Company, Battle Creek, Mich.: You will please ship for the undersigned, to ■or in care of James O’Laughlin, at Rolla, N. D., by the route you consider best and cheapest, on or about the 1st day of August, 1899, with the fixtures and extras as you usually furnish them: 1 22-horse simple S. B. traction engine; 1 Perfection weigher, Dak. style; 1 belted separator, -with 41-inch cylinder, 64-inch rear, and 18-foot stacker; 1 Nichols & Shepard self-feeder; 1 rubber drive belt, 150 feet long-, 8 inches wide; 1 water tank, with trucks. The undersigned agree to receive such machinery on its arrival subject to all the conditions and agreements printed below, and pay in cash the freight and charges thereon from the factory, and also agree to pay to your order, at the time and place of delivery, the further sum in cash and notes, as follows: [Here follows a description of the three $940 notes.]
“Warranty. This machinery is purchased and sold subject to the following express warranty, viz.: That said machinery is well •made, of good materials, and, with proper management, capable of doing well the work for which the machines, respectively, are made and sold; conditioned that if, within five days from its first use, it shall fail to fill this warranty, written notice shall be immediately given by the purchaser to .Nichols & Shepard Company, at Battle Creek, Mich., by registered letter, and written notice also to the local dealer, through whom the same was received, stating particularly what parts and wherein it fails to fill the warranty.*448 Reasonable time shall be allowed the company to get to the machine, with its workmen, and remedy the defect, if any there be, the purchaser to render friendly assistance and co-operation. * * * If, after giving the notices above provided, any part of the machinery cannot be made to fill the warranty, that part which fails shall be returned immediately, to place where it was received with the option of the company either to furnish another machine or part in place of the machine or jjart so returned, which shall perform the work or return the money or notes which have been received by the company for the same, and thereby rescind the contract to that extent, or the whole, as the case may be, and be released, from any further liability herein. The failure of any separate machine or any part thereof shall not affect the contract or liability of the purchaser for any other separate machine, or for any parts of such machine as are not defective. It is expressly agreed that said company shall be liable only for the return of cash and notes payable to fits order actually received by it, and not for any machinery or other property taken herein as part payment. * * * Independent stackers, automatic weighers, baggers, wagon loaders, and self-feeders, when ordered, are furnished as extra attachments, at stipulated separate prices, and subject to this warranty and its provisions. * * * If any such attachment fails to fill the warranty, * * * such attachment may be returned to the place where received; * * * but such failure and return of any such attachment shall not affect the contract for any of the other machinery or the liability of the purchasers thereof. * * * Failure to render friendly assistance and co-operation, or failure to give any of the notices in writing as provided for herein, or keeping the machinery after the five days allowed as above provided, shall be a waiver of the warranty, and a full release of the company.
“[Signed.] Bolevard Brunut,
“George Charlebois.”
On the 8th day of September, 1899, the said defendants received said machinery and settled for same by executing and delivering to plaintiff three notes, for $940 each, and the machinery was taken to the farm of the defendants, and on the 9th day of September an attempt was made to operate it, and the separator would not properly separate the grain from the straw. No claim is made that the other machinery would not work to the satisfaction of the defendants. The separator failed to comply with the warranty, and on or about September 29th the entire rig was returned by defendants to the place where it was received.
The questions for determination on this appeal are — First. Have the defendants complied with all the conditions precedent to be by them complied with before they have a right to rely upon a breach of the warranty. Second, in case they have complied with all' the conditions precedent to be by them performed, have they taken, the proper steps to enforce such right, and are they now entitled to relief.
Counsel for appellant contends that the notice was insufficient, in that it did not particularly call to plaintiff’s attention wherein the machinery failed to comply with the warranty. We must overrule this contention. The trial court found that such notice was sufficient in this respect, and we think the evidence fully warrants such finding. The notice informed plaintiff that the separator did not clean the .grain properly, without wasting the■ same, and we do not well see how the defect could have been pointed out more particularly than this.
Appellant further contends that the conditions of the warranty requiring defendants to allow plaintiff a reasonable time to get to the machine with its workmen and remedy the defect was not complied with. The evidence upon this question is conflicting, but the trial, court found in favor of the defendants, and we are not disposed to disturb this finding-, as wc consider the evidence sufficient to sustain the same. The defendants gave the plaintiff sufficient time to remedy the defect, but the plaintiff wholly ignored defendants’ letter, and no attempt was ever made to remedy the defect in the separator after the notice was given. We therefor think the evidence justifies us in holding, as we do, that defendants complied with the conditions precedent to be performed by them in order to entitle them to rely upon a breach of the warranty.
This brings us to the principal question in the case, which involves a construction of the contract between the parties. The contention of counsel for appellant is that the contract is divisible, and hence that the failure of the separator to conform to the warranty did not authorize defendants to rescind the contract as to the engine and other property purchased by them, and which complied with the warranty. If the contract was divisible, then, of course, the failure of the separator to comply with the warranty would not authorize defendants to rescind the contract in toto, especially in view of the express orovisions of the contract to the contrary. It will be noticed that the contract is for a complete threshing outfit, at the stipulated price of $2,820 and freight. No price was fixed, either in the written contract or otherwise, on any of the separate articles. We are therefore confronted squarely with the question as to whether or not a contract for the purchase of several distinct articles for one consideration may be a divisible contract. The general rule enunciated by the authorities is that if the contract is for the sale of several distinct things, but all for one consideration, it is entire. 7 Am. & Eng. Enc. Law (2d Ed.) p. 96, and cases cited. See, also, Katz v. Bedford, (Cal.) 1 L. R. A. 826, and note (s. c. 19 Pac. Rep. 523). “Whether a contract is entire or severable depends, in general, upon the consideration to be paid, not upon its subject. If the consideration is single, the contract is
The supreme court of Iowa in a recent case, in disposing of this question, said: “Plaintiffs claimed the price of the perfection weigher in any event, because they say there was no breach of warranty as to it. But it was included in the order for the thresher at a gross price of $450. A rescission of the sale affected all the property covered by the order. There was a clause in the written order to this effect: ‘Clover hulling attachments, baggers,'weighers, wagon loaders, self-feeders, and other extra attachments are furnished at stipulated separate prices, and are subject to the above warranty.’ We think the provision in the order to the effect that the failure of the warranty as to any separate part or attachment of the machine .should not affect the liability of the purchaser, except as to such part or attachment, must be limited to a part or attachment furnished at a separate fixed price.” Robinson v. Berkey, (Iowa) 82 N. W. Rep. 972.
Tested by this rule, which we believe to be supported by the great weight of authority as well as reason, the contract in the case at bar must be held to be an entire contract. By the failure of the parties to fix a price on the separate articles, they have made it impossible for the court to treat the contract as divisible, although certain language in the contract indicates that such was their intention. Counsel for appellant rely upon the cases of Aultman & Taylor Co. v. Lawson, (Iowa) 69 N. W. Rep. 865; Nichols & Shepard Co. v. Wiedman, (Minn.) 75 N. W. Rep. 208, 76 N. W. Rep 41; Same v. Chase, (Wis.) 79 N. W. Rep. 772.
In the case of Aultman & Taylor Co. v. Lawson the written contract was similar to that in the case at bar, but the evidence disclosed that the lump sum agreed upon was the aggregate of prices agreed upon as to the different parts. The court said: “True, the consideration is stated in one lump sum, but the evidence shows that sum was the aggregate of prices agreed upon’ as to the different parts. The contract does not show the prices on different parts, but, being silent on that subject, it was competent to prove what the agreement was in that respect, such proof not being in contradiction of such contract.” The facts of this case are.clearly distinguishable from those in the case at bar. Counsel for appellant in the case at bar offered certain evidence as to the list prices of these- separate articles, but there is no evidence in the record that the parties ever agreed upon such list prices or any other prices as to each separate article. There is even nothing to show that defendants ever had any knowledge of such list prices, and therefore the objections urged "to this testimony by defendants’ counsel were well founded. In Nichols & Shepard Co. v. Wiedman the opinion does not disclose whether or not the price of each separate article was
Upon the trial defendants asked leave to amend their answer by adding to paragraph 3 thereof the following: “And also a certain note for $205, the consideration for which was the payment of freight upon said machineand by adding to paragrph 1 of the prayer for • judgment the following: “And that said note for $205, referred to in paragraph three, be cancelled and returned to defendants, or that said defendants have judgment against said plaintiff for the amount of said note, together with interest from date thereon;” to which proposed amendment plaintiff objected for the reason, as stated, “that the evidence does not show there was a note given to the plaintiff in this case, and it does not show there was a note for $205 given to any person in connection with the transaction for the purchase of this threshing machine.” No ruling was made at the time allowing or disallowing the proposed amendment, but judgment was subsequently ordered in favor of defendants, directing the return of said note to defendants for cancellation, and ordering judgment for the amount thereof, with interest in case the same is not so returned. The learned trial court, therefore, treated said amendment as allowed. The only testimony offered in relation to the subject-matter of this amendment was to the effect that this note was given to James O’Laughlin, who furnished the money to pay the freight on the rig. Was this amendment and the relief granted thereunder proper? We think not. The note was not executed to the plaintiff, and did not represent any portion of the purchase price of the rig. It was given to O’Laughlin, who, as the evidence shows,
There is but one other question requiring notice. Counsel for respondent made a motion in this court to strike out the statement •of case, which motion was smade upon the ground that the statement embraces a complete transcript of the reporters’ notes instead of the substance thereof. In view of our holding upon the merits in this case, a decision of this motion is rendered unnecessary; but see Bank v. Davis, 8 N. D. 83, 76 N. W. Rep. 998, where it was held that § 5630, Rev. Codes 1899, as amended by chapter 5, Laws 1897, no longer requires that the evidence shall be reduced to narrative form in the statement of the case.
The judgment of the district court will be modified by eliminating therefrom that portion wherein it is adjudged that defendants recover from plaintiff the sum of $205 and interest, or the return of the note for $205 given by defendants for alleged payment of freight, and when so modified said judgment will be affirmed; the appellant to recover his costs in this court.