13 Neb. 210 | Neb. | 1882
This action was brought on a promissory note executed by the defendant in error to the plaintiff in error, for the
“Hastings, Neb. Sept. 5, 1877.
“We Avarrant Wheeler No. 6, combined reaper and mower, bought of us, to be a good grain cutting machine and a good mowing machine. Should the machine fail to do as Avarranted, then and in that case Ave are to be notified and given time to make the machine Avork. Should we fail to make the machine work, then Ave agree to take it back.
“Stabler & Deisher.”
That said machine was not a good grain cutting machine; that plaintiff Avas notified by said defendant and given time to make said machine work; that said plaintiff refused and neglected and entirely failed to make said machine Avork; that said plaintiff having failed and neglected to make said machine work as it agreed, said defendant gave said plaintiff due notice to take it back; that said machine has ever since been at plaintiff’s disposal and subject to its order, etc. The said ansAver also contains a counter claim on the part of said defendant, wherein, after repeating the terms of agreement of the said plaintiff to set up said machine in good running order in due time to cut and harvest defendant’s grain of 1878, the giving of due notice by the
1. In loss of time for himself, two hands, and one team in the sum of $50.00.
2. In loss of grain out of crops of 1878, three bushels to each acre on 60 acres, worth $108.00.
3. In being compelled to hire extra help and another machine to harvest said grain of 1878, in the sum of $35.00.
4. That said plaintiff now owes this defendant for money had and received on or about the 1st day of January 1878, the sum of $30.50, with interest at the rate of 10 per cent per annum, etc.
The cause was tried to a jury, who returned a verdict for the defendant for $100.00, for which sum judgment was rendered in his favor. The plaintiff, in its motion for a new trial, as well as in its petition in error, assigns twenty-six errors. Most of these arise upon the admission of testimony objected to on the part of the plaintiff, and will not require an examinatioxx in detail in order to arrive at a disposition of the case.
The plaintiff objected to the introduction in evidence on the part of the defendant of the warranty signed by Stabler & Deisher, above set out, on the ground that it was the individual obligation of said Stabler & Deisher, and not the obligation of the plaintiff. This objection we do not think was well taken. Stabler & Deisher were the agents of the plaintiff for the sale of its harvester. They had traded one of plaintiff’s harvesters for this Wheeler combined machine, presumably within its authority as agents, The notes
The written warranty having been received in evidence, and being held to be the contract of the plaintiff, its terms, fairly construed, become the law of the case. Aside from the general principle, as stated by Mr. Justice Parker in the leading case of Stackpole v. Arnold, 11 Mass., 27, “that when parties have deliberately put their engage- • ments in writing in such terms as import a legal obligation without any uncertainty as to the object or extent of such engagement, it shall be presumed that the whole engagement of the parties and the extent and manner of their undertaking was reduced to writing; so that oral testimony of a previous oolloquivm between the parties, or of conversation or declarations at the time when it was completed, or afterwards, would tend in many instances to substitute a new and different contract for the one which was really agreed upon,” etc., it is equally repugnant to law and reason that a party, after having proven and availed himself of the advantage of a contract, entire in its terms and covering the whole ground, should be allowed to prove another and different one to sustain the same cause of action. Accordingly, although the testimony of the defendant of the verbal agreement of plaintiff’s agents to set the machine up in good working order in time for the defendant’s harvest of 1878 was not objected to or made a point in the petition in error, such agreement can
The plaintiff, as shown by the written warranty, had warranted the machine in question “to be a good grain cutting machine and a good mowing machine. Should the machine fail to do as warranted, then in that case we are to be notified and given time to make the machine' work. Should we fail to make the machine work, then we agree to take it back.” By their verdict the jury must have found that the machine failed to do as warranted; that the plaintiff was notified and failed to make the machine work. What then was the rule of damages? There are many adjudicated cases nearly in point, but in the limited time at my disposal I have failed to find a single one entirely so. There are many cases of express and many of implied warranties, some in writing and some verbal, but I find no case where, like the present one, the warranty contains a clause of limitation upon the consequences of a failure to make the warranty good. ‘ This clause is of importance in two points of view: First, as fixing a limitation upon the warranty, and secondly, in view of the rule laid down in some of the leading cases on this subject, in showing the scope of the plaintiffs liability as contemplated by the parties when they entered into the contract..
The leading case bearing upon this subject is that of Hadley v. Bazendale, 26 Eng. L. & Eq. R., 398. In that case the court states the rule as follows: “ When two parties have made a contract which one of them has bi’oken, the damages which the other party ought to receive in respect of such breach of contract should be either such as may fairly and reasonably be considered arising naturally, that is, according to the usual course of things,- from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it. Now, if the special circumstances under
In the case of Hadley v. Baxendale, supra, the plaintffs were the owners of a steam grist mill and contracted with the defendant, a carrier of goods by railway, to carry for hire two pieces of iron, constituting the broken shaft of a mill, and deliver the same to an artificer who lived at a considerable distance, in order to serve as a model for a new shaft to be ojiade for them by him. The defendant having violated
In the case at bar had the plaintiff not limited its liability by the terms of the warranty, would such liability, upon the authority above quoted, have extended to the damages embraced in the first, second, and third paragraphs of the defendant’s counter-claim? I think not. It cannot be that in a populous county of this state like Hall county, that usually and ordinarily when a farmer is disappointed in his reaper, and is obliged to obtain the use of another with which to cut his harvest, such consequences follow as those set out in the said paragraphs. Certainly, as in the case above cited, “such loss would neither have flowed naturally from the breach of this contract in the great multitude of such cases occurring under ordinary circumstances, nor were the special circumstances, which perhaps would have made it a reasonable and natui’al consequence'of such breach of contract, communicated to or known by the” plaintiff. So I think the district coui’t erred in refusing to instruct the jury substantially as prayed by the plaintiff in respect to the said paragraphs. This, even upon the theory that plaintiff’s liability was not limited by the terms of the written warranty and the evidence of a verbal agreement on the part of the plaintiff to set up the machine' in time for the harvest of 1878, etc., was properly admitted. But as we have before stated, the terms of the written warranty limited the liability of the plaintiff to taking back the machine, and of course restoring any part of the purchase price which had been paid.
Reversed and remanded.