31 Minn. 343 | Minn. | 1883
Prior to the harvest of 1878, the plaintiff purchased of the defendant a self-binding harvesting machine, known as the “Osborne Self-binder,” for the agreed price of $310, $100 of which was paid at the time of the sale. As a part of the transaction the following warranty and agreement was executed by the defendant and delivered to the plaintiff:
“All our machines are warranted to be well built, of good material, and capable of cutting, if properly managed, from ten to fifteen acres per day. If, on starting a machine, it should in any way prove defective, and not work well, the purchaser shall give prompt notice to*345 "the agent of whom he purchased it, and allow time for a person to be sent to put it in order. If it cannot then be made to do good work, the defective part will be replaced or the machine taken back, and the payment of money or notes returned. Keeping the machine during harvest, whether kept in use or not, without giving notice as above, shall be deemed conclusive evidence that the machine fills the warranty. H. M. Osborne & Co.”
This action is for the recovery of damages for breach of the warranty. The defects relied upon were confined to the binding machinery, no other fault having been found in the machine. Upon the issues submitted to the jury, their verdict in favor of the plaintiff must be regarded as having established the fact that the binder was defective and incapable, although properly managed, of performing as required by the conditions of the warranty, if those conditions are to be construed as applying to the binding attachment. The verdict also determines that the plaintiff gave notice of the defect's, as required by the terms of the agreement, and allowed opportunity to remedy them. He kept the machine and used it through several successive harvests, although he repeatedly complained of the defects to defendants’ agents. He does not appear to have ever distinctly offered to return the machine, nor have the defendants ever offered to take it back. The grounds upon which the defendants rest their appeal are embraced in these three propositions: First, that there is no evidence that the defects were not in the management of the harvester, rather than in the machine itself; second, that the warranty had no application to the binding machinery; and, third, that the exclusive remedy of the plaintiff, prescribed by the contract for breach of the warranty, was that the property should be returned and the sale rescinded.
1. We will only say, as to the first point, that we find the conclusions of the jury, as to the defects in the binding apparatus, well sustained by the evidence.
-2. The warranty was applicable to the machine, both as a reaper and binder. It appears to have been one complete machine, for the cutting and binding of grain, and that it was incapable of being used
3. The plaintiff gave notice, as was required of him, of the defective operation of the machine, and allowed time for remedying it. No other affirmative act was required of him by the contract as a condition precedent to enforcing his rights under the warranty, by an action for damages for its breach. The warranty was an absolute obligation of the vendors respecting the quality and capacity of the machine. The sale was perfected, and the title of the property transferred, although the vendor promised, and assumed the obligation in favor of the vendee, to rescind the sale in the event specified. The contract did not obligate the vendee to return the property nor to rescind the sale. It does not provide that the sale should be rescinded upon the contingency specified; nor does it express any intention of the parties that the remedy to which the vendee might become entitled for a breach of the express warranty should be confined to rescinding
Order affirmed.
