122 Minn. 209 | Minn. | 1913
This action was brought to recover damages for the breach of a warranty upon the sale of a boat dredge. Plaintiffs had a verdict for $1,500. Defendant appeals from the order denying its alternative motion for judgment or for a new trial.
The facts of the case are not complicated. Some confusion has come from an inadequate analysis. The action can be supported only as one for the breach of a covenant of warranty. The important question is whether there is a warranty. No other question of difficulty is presented. Most of the other questions, though properly here, need not have arisen.
The contract, so far as material to the determination of whether a warranty of the kind stated is a part of it, is as follows:
“The parties of the first part in consideration of the payments and agreements of the parties of the second part, hereinafter specified, agree and do hereby sell and agree to deliver to said parties of the second part, one new Mayer Boat Dredge of the latest pattern of one cubic yard capacity, said machine to conform to the standard specifications accompanying this contract and furnished by the said parties of the first part.
“The parties of the first part hereby agree to furnish an expert at their own cost and expense to make a demonstration of the rated capacity of said machine, and they agrfee that said expert shall show said machine, to be capable of digging six hundred cubic yards of dirt per day of ten (10) hours, without straining said machine and*212 under normal working condition in digging where the ground is not frozen and where the yardage shall be not less than one hundred and seventy yards per one hundred running feet, said demonstration to take place during the first fifteen days’ operation of the machine. * * *
“The parties of the first part agree to replace such portion of machinery at their own cost and expense, as may break during transportation, removal, unloading and erection of said machine and to replace free of charge F. O. B. Mankato, Minn., to second parties :all parts of machinery which may break by reason of flaws or defects in material and workmanship for sixty clays. * * *
“Parties of tbe second part hereby agree to accept tbe said ma■cliine at tbe end of fifteen days’ trial and otherwise found according do this contract and specifications hereto attached.”
To constitute a warranty, it is not necessary that the word “warranty” or a precise equivalent be used. It is enough if tbe vendor definitely undertakes that tbe thing sold shall be of a certain kind or quality.
The construction of the contract presents some difficulty.
It is clear enough that the defendant undertook to furnish a dredge capable of digging 600 cubic yards of dirt in a 10-hour day. It was intended that the plaintiffs should get just such a dredge. The contract should he construed to intend a warranty to that effect, available to tbe plaintiffs upon tbe subsequent failure of the dredge to do the work specified, unless the provisions for a 15 days’ test, and a 15 ■days’ trial, are determinative whether the dredge was of the agreed capacity.
If it was intended by tbe contract that the 15 days’ trial should bo .■a test wbicb would be a final determination whether tbe vendor bad furnished a machine which satisfied tbe contract, and tbat a retention of tbe machine after tbe 15 days was an acceptance of it as in full compliance with the contract, then there was no warranty surviving the retention of the machine. Williston, Sales, § 491. In other words, though it'was the intention that the machine should have the-600 cubic yards capacity, if the parties fixed upon the 15 days’ test .and trial as the means of finally determining it, so that each party
We are of the opinion that it was not intended that the test and.' trial should be determinative of the sufficiency of the dredge. The-contract was executed, a part of the purchase price was paid, and the notes for the deferred payments were delivered, long before a test or trial was had. The contract was dated August 4, 1910, the delivery was in November, and there Was no sufficient test or trial, if ever there was any, until the latter part of the April following. The test was not preliminary to a contract. No right to reject or return the-machine was reserved.
We hold that there was an express warranty that the dredge would, develop a capacity of 600 cubic yards per day.
The four notes evidencing the deferred payments were assigned by the plaintiff to the First National Bank of Mankato, and suit was brought, and judgment was entered, before the commencement of this-action. The vendor in a conditional sale contract upon the default of his vendee may retake the property, or he may treat the sale as ab
The result is that an action on the warranty is maintainable, if the rule is that such action will not lie where the sale is conditional, and it is maintainable if the rule is otherwise.
Order affirmed.