250 N.W. 922 | N.D. | 1933
In March, 1927, the plaintiff, at the solicitation of Palmer Brothers, machinery dealers who were selling the defendant's machinery in the territory wherein plaintiff resided, signed an order addressed to the defendant for the purchase of a gas tractor and plows. This was transmitted to the defendant, but for some reason, which does not appear in the record, was rejected by it. On May 2nd the plaintiff signed another order for the purchase of one secondhand 15-27 gas tractor, one three bottom Grand Detour secondhand plow, and one three breaker bottom extension axle. This order also was signed at the solicitation of Palmer Brothers and one of the company's blockmen named Church. Among other things the order recited:
"As a condition hereof it is fully understood and agreed that said machinery is purchased as second-hand and the Company makes no warranties or guaranties of any kind either expressly or by implication except as to the ownership thereof at time and place of delivery.
"No representation made by any person as an inducement to give and execute this order shall bind the Company."
On the right-hand margin of the order in large black face type was printed: "Salesmen, Mechanics and Experts are not authorized to bind the Company by any act, contract or statement." On the opposite margin was printed: "No Branch Manager, Salesman, Expert, Local Dealer or any other person unless authorized in writing by an officer of the Company has any authority to waive, alter or enlarge this contract or to make any new or substituted or different contract, representation or warranty." This order was executed by the plaintiff in triplicate and he received and retained one copy thereof. Immediately above his signature is printed: "The undersigned hereby acknowledge to have received a full, true and correct copy of this order, and that no promises, representations or agreements have been made to or with me not herein contained." Palmer Brothers, after having procured the order from the plaintiff, indorsed their recommendation and approval thereon and forwarded it to the defendant. The defendant accepted this order and pursuant to its terms shipped to the plaintiff the machinery described therein. Under the terms of the order plaintiff *193 was to pay $1,275 for the machinery, payable $675 on September 1, 1927, and $600 on September 1, 1928, these payments to be secured by mortgage on the machinery purchased and earnings thereof, and also on certain crop to be planted and grown in 1927 and on ten head of cattle, the property of the plaintiff. In due time the plaintiff received the machinery. He executed the notes and mortgages pursuant to the agreement, paid the freight and took the machinery to his farm. He kept it in his possession and used it. In 1928 he traded the plow to Palmer Brothers for another secondhand plow. On November 17, 1927, he made a payment of $277.35; on February 2, 1929, $232.85; on November 27, 1929, $295. In March, 1928, he executed renewal notes and mortgages, and again in February, 1929, in January, 1931, and in February, 1931. In October, 1931, plaintiff served notice of rescission of the contract, tendered a return of the tractor, and demanded the repayment to him of the purchase price theretofore paid. In October, 1931, he began the instant action.
In his complaint the plaintiff alleged an agreement on the part of the defendant to sell and on his part to buy the machinery in question; that the defendant's agents represented and warranted that such machinery was rebuilt and would run and operate as well as though new; that they falsely and fraudulently represented that such warranties were incorporated in the written order which the plaintiff would be required to sign; that believing all of such representations and relying thereupon the plaintiff agreed to and did purchase the machinery and signed the order therefor; that within a reasonable time after the plaintiff purchased and acquired possession of the machinery he gave it a fair trial and discovered that it was not the machinery he had contracted to buy and that it was defective and would not work; that he immediately rescinded the contract of sale, tendered a return of the tractor to the defendant and demanded back the purchase price; that the defendant induced him to keep said tractor by promising to fix it and make it as represented to him and fit for the purposes for which it was bought, and that if the defendant failed so to do the purchase price would be returned to the plaintiff; that the plaintiff relying on said assurances and representations permitted the tractor to remain on his premises; that thereafter through duress and coercion and upon *194 the further assurances of the defendant that it would repair, rebuild and make the same work, the plaintiff made certain payments on the purchase price and executed renewals of his notes and chattel mortgages; that the defendant wholly failed to repair and rebuild the tractor and make the same work; and concluded "That by reason of the foregoing promises, this plaintiff is entitled to a return of the purchase price as aforementioned, towit: the sum of $1,350.00. That the defendant by its acts and conduct as aforementioned has waived any provisions in the contract and any provisions of law with reference to a return or offer to return the tractor, or rescission of same by reason of inducing the plaintiff to keep same under promises of repair, etc. That by reason of the foregoing promises, the plaintiff has been damaged in the sum of $1,350.00 with interest thereon at the rate of 6% from the 2nd day of May, 1927. Wherefore, Plaintiff prays for judgment against the defendant for the sum of $1,350.00 with interest thereon at the rate of 6% per annum, together with the costs and disbursements of this action." To this complaint the defendant answered, admitting the sale of the machinery to the plaintiff, but denying generally all of the other matters and things set out in the complaint.
The case was tried to a jury, which returned a verdict for the plaintiff in the full amount of the payments as made by him, together with interest thereon from the dates thereof. At the close of the plaintiff's case, and again at the close of the whole case, the defendant moved for a dircted verdict on the ground that the plaintiff had failed to establish a cause of action, in that he had not shown any timely rescission or excuse therefor or any tender or offer of a return of the property. The motions were denied. The case was submitted to the jury on the theory of rescission. The court instructed that it was for the jury to determine as to whether the machinery was fit and suitable to satisfy the purpose for which it was purchased and, if it was not, as to whether the plaintiff on that account had rescinded the contract of purchase and placed the machinery at the disposal of the seller. The jury returned a verdict for the plaintiff. Before judgment was entered thereon the defendant moved for judgment notwithstanding the verdict. This motion was taken under advisement by the court. Thereafter judgment was entered and subsequently the defendant moved for a new *195 trial or for judgment notwithstanding the verdict on the grounds on which it had predicated its motion for directed verdict. The court granted the motion for judgment notwithstanding the verdict, ordered judgment for the defendant accordingly, and judgment was entered thereon. Thereupon the plaintiff perfected the instant appeal.
An orderly disposition of this appeal makes it necessary first to determine the contract which fixes the rights and obligations of the parties. The defendant insists that the order heretofore referred to constitutes such contract. The plaintiff is equally insistent that the contract is an oral one made subsequent to the delivery of the machinery. The order in question, and on which the defendant relies, is in plain print and easily readable. As stated above, it provides: "No representation made by any person as an inducement to give and execute this order shall bind the Company." The contract on its face gives further notice of the limitation of the authority of dealers and salesmen to waive, alter, or enlarge its terms. Notice could not be more effectively given than by the words printed in large black face type on the margins of the contract heretofore referred to. The plaintiff reads, writes and speaks English fluently. There is no contention that anyone, either by subterfuge or persuasion or otherwise, attempted to prevent him from reading the contract. There can be no question but that if he had wished to do so he could have read the order before he signed it, and that if he did not it was because of his own indifference and carelessness, and only because thereof. If the contract is different from what he thought it to be, that is his own fault and he is bound thereby. See Minneapolis Threshing Mach. Co. v. Hocking,
The contract of purchase and sale covered the tractor, plows, and an extension axle. This machinery is within and subject to the provisions of the statute, § 5991a, 1925 Supplement, which provides that any person purchasing a gas or oil burning tractor for his own use shall have a reasonable time after delivery for the inspection and testing of the same and if it does not prove to be reasonably fit for the purposes for which it was purchased, may rescind the sale by giving notice within a reasonable time after delivery to the parties from whom such machinery was purchased or the agent who negotiated the sale or made delivery thereof and placing the same at the disposal of the seller. This *197
statute became a part of and must be read into the contract notwithstanding any provisions thereof to the contrary. See Minneapolis Threshing Mach. Co. v. Hocking, supra; Dwinnell v. Boehmer,
Finally, the plaintiff urges that the court erred in ordering judgment notwithstanding the verdict instead of ordering a new trial. In that behalf he contends that in his complaint he stated a case not only on the theory of rescission but also on the theory of damages for breach of warranty and that by the rulings of the court he was confined in his proofs to the theory of rescission; that he was entitled to have the case submitted on the damage theory and so a new trial should have been ordered. See Fuller v. Fried,
But there is a further, and we think insuperable reason why we must hold that the trial court did not err in refusing to grant a new trial. The contract which we have held to control in this case provides that the company makes no warranties or guaranties of any kind either expressly or by implication except as to the ownership thereof at time and place of delivery. Thus the parties expressly excluded all warranties except the warranty of title. They had the right to do this, except as that right was restricted by the provisions of the statute, §§ 5991a and 5993a, 1925 Supplement. Where as in this case the provisions of the contract are in conflict with the statute, the statute must be read into and as a part of the contract. Thus considering the contract if the machinery bought did not prove to be reasonably fit for the purpose for which it was purchased, plaintiff might rescind by giving notice within a reasonable time after the discovery of the unfitness thereof to the defendant itself or to the agent who negotiated the sale and placing the property at the disposal of the seller. Minneapolis Threshing Mach. Co. v. Hocking,
The judgment is affirmed.
BURR, CHRISTIANSON, BIRDZELL and BURKE, JJ., concur.