Russell & Co. v. Bondie

51 Mich. 76 | Mich. | 1883

Geavbs, O. J.

The plaintiff company, described as an Ohio corporation, sued Bondie on the common counts, and the circuit judge directed a verdict in his favor.

The purpose of the action was to recover a portion of the purchase price of a threshing-machine which Bondie had purchased of the company by means of an order which its agents had procured from him. A copy is given below.^* Tbe body was a printed blank which the plaintiff had prepared for general use, to be filled up and modified in .separate cases according to the view's of the parties. As here shaped and executed on the 9th of June, 1880, it provided that the purchase price should be paid by Bondie’s promissory notes, secured by mortgage on certain real estate, and no other form of personal liability was provided for or contemplated. Except as he should be personally liable as maker of the notes, he was not to be personally liable at all. Such was the original character of the order ; but about two weeks after it was signed, and before delivery of the machine, Bondie desired a modification, and the company assented to it. It consisted in adding these words: “ It is understood that no notes are to be given on this sale, but a simple Michigan mortgage.”

In the course of a few days the parties proceeded to ■carry out the arrangement as thus modified. The machine was delivered by the company and a mortgage given by Bondie as provided in the order. No notes were given, and the mortgage was in common form, without covenants.

The result seems very clear to the Court. Although the original tenns requiring that Bondie should give notes were not physically obliterated, the addition of the new provision had the clear effect as matter of law to eliminate them from the order. They were annulled, and the machine was to be furnished by the company, if at all, in sole reliance on the provision for mortgage security. The terms prescribed by the proposal as modified excluded all others. The plaintiff was informed upon what conditions the defendant would become a buyer, and all other conditions were impliedly negatived, and the effect was to shut out the personal liability now contended for.

This disposes of the case and leads to an affirmance of the judgment, with costs.

The other Justices concurred.

* Exhibit A.

to Russell & Co., Massillon, Ohio, and to the party through whom the machinery was purchased, stating wherein it fails to fill the Warranty, .and time, opportunity, and friendly assistance given to reach the machine and remedy any defects. If the defective machinery cannot then be made to fill the Warranty it shall he returned to the place where received and another furnished on the same terms of Warranty, or money and notes to the amount represented by the defective machine shall be returned, and no further claim be made on Russbll & Co. Continued possession or use of the machine, after the expiration of the time named above, shall be conclusive evidence that the Warranty is fulfilled to the full satisfaction of the purchasers, who agree thereafter to make no other claim on Russbll & Co., under Warranty. In case any ■casting fail through any defect in its material during the first season, defective piece shall be replaced without charge, except freight or express charges; but on any claim for replacement of defective castings, the defective pieces shall be presented to Russbll & Co.,.or the dealer through whom the machine was ordered, and shall clearly show the ■defects. Defects or failure in one part shall not condemn nor be grounds for claiming renewal, or for the return of any other part. All Warranties to be invalid and void in case the machine is not settled for when delivered.

Set of Tally Boxes to he included in the above. It is understood that no notes are to be given on this sale, but a simple Michigan mortgage.

Robbrts Bros., Agents.