Vogel v. D. M. Osborne & Co.

34 Minn. 454 | Minn. | 1886

Berry, J.

After a careful reading of the settled case before us, we adopt as appropriate to this appeal the substance of a conclusion arrived at upon the former appeal, (32 Minn. 167,) viz., that there was evidence sufficient to warrant the jury in finding that Earl & Hanson were defendant’s agents to sell the Osborne machines, with authority to give both of the warranties set forth in the complaint, and to employ canvassers to solicit orders and make sales; and that Kinney made this sale as canvasser of Earl & Hanson, and in defendant’s behalf. To this we may add that the evidence in the case at bar was sufficient to warrant the jury in finding that defendant, through its said agents, made the original warranty upon the sale of the machine, and also the warranty (Exhibit A) upon which this action is based; that the latter was founded upon a sufficient consideration, viz., the settlement therein mentioned of the plaintiff’s claim on account of the breach of the original warranty; and that the second warranty has been broken, so as to entitle plaintiff, upon proper demand, to the refunding of “the receipts of settlement” therein mentioned. We are also of opinion that there was competent evidence from which the jury was warranted in inferring that the two notes given by plaintiff, upon the execution of Exhibit A, were, as between plaintiff and defendant, “receipts of settlement,” within the meaning of the exhibit, and that the plaintiff is entitled to the refunding of the same. We shall not enter into details of evidence for the purpose of justifying these conclusions, but with reference to the authority to warrant, we cite McCormick v. Kelly, 28 Minn. 135; Deering v. Thom, 29 Minn. 120; Flatt v. Osborne, 33 Minn. 98.

There is nothing in this case to show that this presumed authority to warrant was qualified by the communication of any express limitation of it (if any there were) to the plaintiff; and a like remark is applicable to the taking of the notes by Earl & Hanson in settlement with the plaintiff, and to the conclusion that, as so taken, the jury was at liberty to find that, as between plaintiff and defendant, they were “receipts of settlement,” received by defendant through its agents, Earl & Hanson.

This is an action upon the defendant’s alleged agreement in Exhibit A to refund “the receipts of settlement,” if the new binder therein agreed to be furnished did not work as warranted. As was properly held by the court below, the only “receipts of settlement” of which there was evidence were the two notes given by plaintiff upon the execution of this exhibit. Now, upon non-compliance with his proper demand (of which there was evidence) for the return of the notes, if the jury found the other material facts in his favor, (as the verdict shows,) the plaintiff was entitled to at least nominal damages. But the verdict was for the full amount of the notes. For this result we are unable to discover any foundation in the evidence. According to the testimony, the notes were paid by plaintiff to the First National .Bank of Fergus Falls shortly after the former trial of this action. There is nothing in the case showing that they were negotiable. The ■evidence, .as far as it shows anything, tends to show that they were not. Neither is there any evidence that they were indorsed or otherwise transferred to the bank, or to any one. Had they been paid before the plaintiff, in the exercise of reasonable diligence, had discovered the breach of the warranty found in Exhibit A, there would be no doubt of the plaintiff’s right to recover their full amount, if the other material facts of a case were with him. But so far as the evidence discloses, the plaintiff had a complete and perfect defence to the notes in whatsoever hands they might be found. Indeed, for aught that appears, they were at the time he paid them the property of the defendant or its agents by whom they were taken.

Now, upon defendant’s refusal to refund the notes to plaintiff upon proper demand, his remedy, as sought in this action, is for the damages resulting from the breach of the contract to refund. The consequences of this breach were that the notes were left outstanding against the plaintiff, and he was in danger of being sued upon them. Now, so long as he had a perfect defence to them, no matter whose hands they came to, — so long as he was in fact under no legal liability on account of them, — how can he be said to have suffered any substantial damage from the refusal to return them ? And if, notwithstanding he is not liable upon the notes, he sees fit of his own motion to pay them, how can that be said to be anything more than his own voluntary and unnecessary act? — in effect- a pure gift to the holder of the notes, and not in any legal sense the consequence of, or damage resulting from, the refusal to refund them according to agreement. In our opinion, therefore, the evidence does not sustain the verdict, and there must be a new trial.

We may add that if the notes were negotiable in form, but had not been indorsed before maturity, they would stand upon the same footing, as respects plaintiff’s right of defence, as if non-negotiable; and, on the other hand, if being negotiable they were duly indorsed before maturity, the plaintiff could not set up his defence against a bona fide indorsee; and hence, with or without payment of them, he would be entitled to recover their full amount of defendant, if the other facts material to his recovery were found in his favor. We conjecture that the charge of the court proceeds upon the basis that the notes were negotiable promissory notes, properly indorsed before maturity. If, upon a new trial, this should turn out not to be the fact, fas the evidence in the present case does not show it to be,) the charge will evidently require some modification to harmonize it with the foregoing views.

As to the other matters suggested by defendant’s counsel, we discover no error sufficiently substantial to require special notice in this opinion.

Order reversed and new trial directed.