23 S.D. 476 | S.D. | 1909
This action was brought in the circuit court by the plaintiff and appellant, manufacturers of threshing machines, against the defendants and respondents, purchasers of a threshing ‘Outfit, to recover on two of three notes given to plaintiff by defendants; the third note not being due at the time of suit. The complaint was in ordinary form of complaint to recover on notes. The answer admitted the execution, delivery, and nonpayment of the notes, and then alleges that such notes 'were given in part payment of threshing rig, and alleges an express warranty as to such rig, that there was a breach of such warranty, that such threshing rig was of no value, that by reason thereof defendants returned the rig to plaintiff ,and that the consideration for the notes had wholly failed. Verdict was for the defendants, and, motion for new trial being denied, the plaintiff appealed to this court from air order denying new trial, and from the judgment entered on the verdict.
There are numerous assignments of error in the record, but, under the view we take of the case, it is unnecessary to note them in detail. It will be noted that there was no counterclaim of damages for breach of warranty, that the defenses were plea of rescission on account of breach of warranty, and plea of failure of consideration. Under the instructions of the court,, the case seems to have been submitted to the jury upon the propositions of whether there had been a rescission by the defendants, and whether they had complied with all of the conditions* of the contract necessary to entitle them to rescind. The threshing outfit was sold under an order or contract in form similar in many respects to those that have been before this and other courts frequently, wherein it is provided that the purchaser shall have a certain number of days within which to try the machine; that, if said machine is kept after such period without notice of defects, it' is a waiver of any breach of warranty; that, in case machine-does not work properly'during such
Plaintiff moved for directed verdict when defendants rested their case and also when all the evidence was in, and it has properly preserved the record on the error, if any, in the trial court’s failure to so .direct verdict. We are of the opinion that the court should have directed a verdict as asked. The provisions of the order in question were valid and binding on both parties, and, as long as purchasers will sign these orders, they must abide by them. The right to be notified of the defects in this machinery after the “second” or “two days” trial was a very material right so far as plaintiff was concerned. Defendants had no right whatever at that time to rescind the sale, but were bound to return the defective rig or parts thereof to place where they got it, to notify the plaintiff of such return, and then the plaintiff .could elect to return the notes or replace defective machines with others. The contract 01 order in this case was divisible in its, nature. Each separate pail of the threshing rig liad a price fixed thereon; the items foi .he several parts going to make up the total consideration lor the rig. The order provided that any breach of warranty as to, one part should in no manner affect the binding effect of the order as to the other parts of the rig, and that, in case part of the rig was defective, that part only cpuld be returned except at the option of the plaintiff. The contract in this case in this respect was almost the
The judgment of the trial court and order denying a new trial are therefore reversed, and a new trial granted.