198 N.W. 550 | N.D. | 1924
Plaintiff brought this action to recover upon a promissory note in the sum of $550, executed by the defendant to the •plaintiff. The defendant in his answer admitted the execution and delivery of the note and that the plaintiff was the owner and holder thereof. The answer further averred that the consideration for the
“If, however, you find from the evidence that there was a warranty and a breach of warranty, then you must go further; and in that event you must determine from the evidence what was done by the defendant. That is, you must determine whether or not the defendant returned or offered to return the tractor within a reasonable time, if he did then the plaintiff cannot recover in this action; therefore if you do not find these essentials to the defense, then the verdict must be for the plaintiff.
“Remember the issues as they are framed, there is no question but that the note was executed by the defendant. The question is: was there a warranty and a breach of warranty and if there was, did the defendant return or offer to return the tractor, within a reasonable time.”
In the motion for a new trial it is said: “The above instructions are claimed to be erroneous by the defendant in that the jury was limited in' its consideration of the issues of the case to only the fact of a rescission of the contract on the part of the defendant and that the instructions excluded a further question raised by the pleadings and the evidence to the effect that even though there was no rescission on the part of the defendant, the defendant was entitled to a consideration of his damages by virtue of the breach of warranty and to have determined the actual value of the tractor under the proof of warranty and breach thereof, if any; said instructions were further erroneous and misleading for the reason that they withdrew from the jury the question of failure of consideration by virtue of warranty and breach thereof, if any.”
After due consideration of such motion the trial judge filed the following decision:
“In my opinion the motion for a new trial should be denied in this case. ■>..
“I think .the instructions are in harmony with the theory the defendant assumed at the trial. If I remember correctly the defendant
“No evidence, was offered, as I remember the case, of damages by way of recoupment in diminution of the debt, and there would have been no -way for the jury to determine the amount of the damages.
“I remember that I had, in drawing my outline for instructions during the recess, included instructions on this theory of the case, but did not use them because I considered that it had been abandoned, and no instructions along this line were requested.
“I feel that substantial justice was done, and will therefore deny the motion.”
The sole question presented on this appeal is: Did the court err in instructing’ the jury as above set forth? After careful consideration we have reached the conclusion that no error was committed.
The statute (Uniform Sales Act, § 69, Laws 1917, chap. 202) provides :
“(1) Where there is a breach of warranty by the seller; the buyer may, at his election—
“(a) Accept or keep the goods and set up against the seller, the broach of warranty by way of recoupment in diminution or extinction of the price;
“(b) Accept or keep the goods and maintain an action against the seller for damages for the breach of warranty; . . .
“(d) Bescind the contract to sell or the sale and refuse to receive the goods, or if the goods have already been received, return them or offer to return them to the seller and recover the price or any part thereof which has been paid. . . .
“(2) When the buyer has claimed and been granted a remedy in any one of these ways, no other remedy can thereafter be granted.
“(3) Where the goods have been delivered to the buyer, he cannot rescind . . . if he fails to notify the seller within a reasonable time of the election to rescind, or if he fails to return or to offer to return the goods to the seller in substantially as good condition as they were in at the time the property was transferred to the buyer. . . .
“(4) Where the buyer is entitled to rescind the sale and elects to do so, the buyer shall cease to be liable for the price upon the returning or offering to return the goods. . . .
“(7) In the case of breach of warranty of quality, such loss, in the Absence of special circumstances showing the proximate damage of a greater amount, is the difference between the value of the goods at the time of the delivery to the buyer and the value they would have had if they had answered the warranty.”
It will be noted that in cases where the property has passed three remedies are available to the buyer: (1) Recoupment, (2) an action or counterclaim for damages, and (3) rescission. § 69, supra. See also Williston, Sales, § 604.
But when the buyer has claimed and been granted a remedy in any one of these ways no other remedy can thereafter be granted. Section 69 (2) supra. The defendant in this case apparently sought to defend on all three theories; for the breach of warranty is (1) asserted by way of recoupment in extinction of the purchase price; (2) it is asserted that the defendant rescinded the sale; and (3) a counterclaim is interposed for the full amount of the purchase price and certain additional consequential damages. No question is presented on the record in this case as to whether under such an answer a defendant may be required to elect which one of the three theories he will rely on; or whether all three or any two of them may be submitted to the jury under appropriate instructions.
While there is some distinction between recoupment and counterclaim as regards the theory on which the amount of the buyer’s damages is arrived at, and in some cases the two remedies may not produce the same result (Williston, Sales, § 605), under either theory it is incumbent upon the buyer to adduce evidence by which his damages may be measured. And the measure of such damages is fixed by § •69, (6), (7), supra. In this case there is no evidence as to what the tractor would have been worth if it had answered the alleged warranty. And the evidence adduced by defendant as to its value at the time of delivery is quite unsatisfactory and falls far short of showing that it was wholly without value; and no evidence whatever was adduced tending to establish the allegations of special damages on account of moneys expended for repairs, etc. Upon the record as a whole, we think