3 Wash. 603 | Wash. | 1892
Plaintiffs prosecuted this action to recover of the defendants the balance of the purchase price of a certain traction engine alleged to have been sold and delivered by them to said defendants. Said engine was delivered to said defendants in pursuance of a certain contract in writing, in words, letters and figures following, to wit:
“Walla Walla, Wash., May 28,1890.
“Staver & Walker, Portland, Oregon:
“I hereby purchase from you upon the terms herein stated, and upon the warranty hereunder, one sixteen-horsepower, center-crank, straw-burning, self-steering traction engine, which you will please ship on or about the 11th day of June, 1890, or as soon thereafter as you can obtain transportation, for the undersigned, to Elwood, care of T. A. Rogers, for which I agree on delivery to carrier to pay the sum of two thousand one hundred dollars, as follows:
Second hand 13-horse-power engine, bought of Staver & Walker, year 1885.................................................... §800 00
One note due Nov. 1,1890............................................... 650 00 (With interest at 10 per cent, from date.)
One note due Nov. 1,1891................................................ 650 00 . (With interest at 10 per cent, from date.)--
Total................................................................ §2,100 00
And I further agree to settle by cash or notes, as above provided, with approved security, on delivery to carrier of machinery, and failing to pay said moneys or execute and deliver said notes, then all of said purchase price shall become due and payable at once.
“This contract of purchase is subject to approval and acceptance by Staver & Walker aforesaid, to be evidenced by them or their agent signing the same, and it being approved by Staver & Walker at Portland, Oregon. And it is understood that Staver & Walker are not to beheld responsible for any delay or damage yi transportation, however arising, and that no agreements, conditions, warranties or stipulations, verbal or otherwise, save those mentioned in this contract, will be recognized.
“ WARRANTY.
“The above machinery is warranted to be well made, of good materials, and with proper usage to do as good work*605 as any of its kind manufactured in the United States. If the machine fails to fill the above warranty, written notice must he given Staver & Walker, Portland, Oregon, and the agent of whom purchased, stating wherein the machine fails to satisfy warranty, and a reasonable time given Staver & Walker, of Portland, Oregon, to send a competent person to remedy the difficulty — the purchaser rendering necessary and friendly assistance. Staver and Walker reserve the right to replace any defective part or parts, and if the machine then cannot be made to do good work, it is to be returned by purchaser where received, and another substituted which shall fill warranty, or the money and notes refunded — one day for trial; use of the machine for more than one day shrill be a fulfillment of the warranty. All warranties tcT be invalid in case the machine is not settled for as this contract provides, or if this warranty is changed, whether by erasure, addition or waiver. T. A. Rogers,
D. B. Rogers.
“D. B. Rogers to endorse note due Oct. 1,1890, only.
“Approved and accepted by Staver & Walker, Portland, Oregon. Frank D. Brown, Secretary.”
The notes specified in said contract were never delivered to the plaintiffs.
A large number of exceptions to the rulings of the court in refusing to admit evidence offered by the defendants, and in refusing certain instructions requested by them, and to the giving of instructions by the court, are preserved in the record. It will not be necessary for us to discuss them in detail. The questions which they present can be fairly disposed of by the discussion of two questions raised by the pleadings and proofs. The first is as to the effect of the contract above set out, and the second is as to whether or not said contract had been modified by an oral arrangement between the parties after its execution, and the effect of such modification, if any is proven.
The contention of the defendants as to the first proposition above stated is, first, that it is always competent under proper allegations in the pleadings, to show the cir
But the contention of the defendants is, that sufficient appears upon the face of said contract to show that D. B. Rogers, who signed the same, did not sign it as a purchaser but only as security to the extent of one of the notes therein mentioned, or that there was such vagueness and uncertainty as to these questions as to make the rule above stated inapplicable. That said contract would have been fully satisfied by the delivery of the two notes mentioned, with only one of them signed by the said D. B. Rogers, is
And this brings us to the second proposition above
In addition to what Mr. Staver is alleged to have said, some proof was introduced as to knowledge brought home to Weir, the agent, and one Colwell; but there was nothing which tended to show at all the intent on the part of the defendants to rescind the contract and return the engine Besides it does not sufficiently appear that said Colwell was the agent of the plaintiffs so that they would be bound by his acts or knowledge. The undisputed proofs show that the defendants used the engine during the entire thresh
The judgment must be affirmed.
Anders, C. J., and Stiles, Scott and Dunbar, JJ., concur.