*1 207 (sec. appointment of providing for receivers The statute years many 1921) on the books has been Rev. Codes carefully analyzed each of and as far back as this court any authority whether could determine its six subdivisions to appointment in an of a receiver action be found therein authority debt; such exists under the it declared that no state, be found the “text context” law of this or can (State Sheep Eighth ex New York Co. v. the statute. rel. also, Court, 969; see, Judicial District 14 Mont. Pac. Berryman Billings Heating Co., 517, 121 v. Mutual Mont. 280.) Pac. jurisdiction appoint

The court a receiver trial was without and, consequently, appeal from is taken the order which this is reversed the cause remanded the district court of county, Cascade to vacate the order. with direction Callaway and Associate Mr. Chief Justice Justices Ford and Galen concur. Angstman, Rehearing January denied 1933. Ap- CO.,

MINNEAPOLIS-MOLINE POWER IMPLEMENT Respondent. PARENT, v. pellant, (No. 6,972.) 1932.) (Submitted 1932. December November Decided (2d) Pac. [17 1088.] *2 McIntyre Mr. Paul & Burtness, Babcock Messrs. Forks, Counsel, Appellant,

Bar of Dakota, Grand North original reply McIntyre submitted brief; an IF. A. Mr. argued orally. the cause Respond- Nyquist,

Mr. Howard M. Lewis Mr. John 8. ent, original supplemental brief; submitted an and a Lewis orally. argued cause opinion

MR. court. JUSTICE GALEN delivered the plaintiff This action was instituted recover approxi- promissory due aggregating *3 notes, delivery of the and admits the execution defendant grounds upon breach war- payment of of but seeks to avoid misrepresentation in connection the with ranty, and fraud Minneapolis Steel Combine Model sale of a certain “C” by attachments; spreader, and and grain tank, straw motor, counterclaim, the de- cross-complaint, a denominated way of deliv- notes executed and alleges that as fendant July 30, dated plaintiff, by to the the defendant ered by payment reason their relieved of should be defendant alleged of breach consideration of want of alleges misrepresentation. The defendant fraud and warranty, warranty, fraud and of consequence of such breach in amounting to sum damages misrepresentation he sustained reply plain- judgment. By prays he $11,049, for which of except answer, allegations of the the affirmative all tiff denies and attachments and the combine of the purchase as to the affirmatively being notes; it delivery of execution purchase sale of the of the time alleged that at therein combine and plaintiff accessories the and defendant entered agreement an into in writing plaintiff gave wherein the to the warranty defendant combine, other, respecting the no being set forth full; in it further averred therein plaintiff that the fully performed has at all times each and every part warranty of its agreement, defendant and that the any never at any time plaintiff notified of defects required combine as warranty in the agreement, but on the contrary retained and used combine and accessories from purchase the time of July 30, or about until on right or about 15, 1930, December thereby waived option which might otherwise have had under the terms of by returning plain- the written property contract demanding by tiff and discharge of the him *4 regularly entered. A motion for judgment was a new which denied, appeal was made and the court and is from trial judgment. appellant specifies seventy-two assignments of error as The judgment, carefully for but after read- reason reversal opinion ing considering we them, and of are of record all disposition questions but considered us need of the case, viz.: evidence; warranty

1. aWas breach of established agreement; 2. effect, any, What was the of settlement if by the competent and 3. proof Is there of sustained judgment? justify defendant to the verdict and years 1. fifteen appears From the evidence ten or engaged in farmer July 22, 1929, before a from the growing crops miles on lands located eleven about E. acquainted town of Carl Medicine Lake with one been had many Nelson, plaintiff’s agent Lake, Medicine at years dealings pur satisfactory in the had with him business machinery equipment chase manufactured farm Minneapolis Threshing Ma predecessor, and its Company, gave chine in his business which him confidence men fact,

combine extension,” with 4—foot but Vollmer induced him to order a assuring 20-foot him combine, be would much bet it ter for purposes. his “I Mr. The defendant testified: took Vollmer’s word for bought him, it I ‘I and the told combine. (cid:127)don’t nothing experience know combines, about I had no as ’ with them, you work, selling they are them and around where ‘ and, I says, just Lou, I your you am taking word it if for and ” say the combine is all right, that I will is the combine take.’ "He further testified that he told Mr. Nelson and Mr. Vollmer farming that land, he was Voll or acres of and mer him really stated to that 20-foot be a a combine would better than good combine it combine, 16-foot “was a combine, good market, as as on the there was best combine on the market —that it would be the com best for my business,” rep bine relying and that Vollmer’s signed resentations he what he terms order” to “an handed him signature, although Vollmer he states that did not know its contents him, it was read to among wherein, things, other ma warranted the chinery in good working delivery, “to be order at the time of perform and will well the work for if intended * * * properly operated used in case there should apparent any machines, real or failure of of said either attachments, component parts thereof, or articles to fulfill the aforesaid, purchaser give warranties shall written notice .complained stating of, the defect the same describing discovered, Company Hopkins, Minn., when it its was to the at office, by registered posted days letter not more than seven discovery, any days after such more event not than ten purchaser, purchaser after it used is first shall thereof, remedying forthwith pending discontinue the use company of such and shall time defect, allow said reasonable remedy any defect, exists; purchaser agrees if friendly company render ade assistance and furnish quate testing operating machinery, means for machinery parts is in its case defect particular remedied, part, machine, same is not attach- which, ment or article conform to the warranties afore- fails to purchaser good said must be returned order as place received, except ordinary wear to where immediately received, thereupon purchaser shall notify company by registered letter ad- of such return thereupon may dressed office, company said home *6 option replace at may either elect rescind the same or this is contract so far such or article machine, as attachment concerned, any is machine, and in case article attachment or company, replaced returned purchaser, and not moneys, company purchaser then the shall return to the property given pro notes and or on his notes therefor credit agreed price machine, attachment or so rata of said article purchaser any fur- returned, and the shall not have nor make any company, ther or other rescis- claim of nature stated, sion, terms and and to extent conditions being remedy. sole

“The or possession machine, part continued use or of period days attachment after a ten from date first of it is possession attempt used or the use and an thereof after has completed remedy been made the fail- defects therein or give required ure to time notices herein as and within required, machine, part or to return the attachment or warranty provided, herein shall be conclusive evidence that the is fulfilled.

“Second. That all machinery mentioned is warranted made, good care, proper well of be material and durable company agrees separate if any distinct individ- parts making up part (except belts, hose, ual the whole bat- spark teries, plugs, magnetos, coils, oilpipes, oilers and warranted) consequence proves are not a latent of defective workmanship, any defect in the material six or at time within delivery machinery, the date months after of the said part if deliv- such is within seven from such date of months ery nearest company, factory returned to the at its at its or freight house, prepaid, is found branch if the same house, company, defective, by rea- manager, its branch or to be son defects, replaced such latent it will charge, free of except transportation charges. That defect within the meaning of warranty this any part machine, attach- ment or article shall not, capable part such renewed, repaired, operate replaced, or to condemn such machine, attachment or article.”

theAt trial offered evidence of execution delivery suit, of the notes in and that is now the lawful part portion owner and holder thereof; that no in- represented thereby debtedness paid, except has been save and as shown indorsements made of credits on each the three July 30, dated notes, 1929, executed the plaintiff, as fol- On lows: for $1,175, paid $43.88 note the sum of on inter- January $331.12, est “by sale,” and the sum of on 31, 1930; December $900, $159.65, note for the sum of proceeds “by sale,” 1930; December note $800, proceeds sale,” 31, 1930, “the of C. M. December thereupon $800. case. rested its F.L. Yollmer and O. Stennes T. both testified that the com- *7 guaranty carefully pany’s was read by aloud to the defendant signed contract, although Yollmer before the defendant this is denied the defendant. About two weeks after the given by equip- order the combine and other Lake, paid were delivered at Medicine ment the defendant charges freight $125, plaintiff’s agent, E. amounting to Carl immediately Nelson, farm, it and it unloaded took to his after experts plaintiff’s which one mechanics went to the helped up. Thereupon defendant’s to set it farm and plaintiff’s agent, Yollmer, L. F. with whom the defendant had contracted machinery, visited the farm defendant’s a him for obtained settlement with re- price ceiving from promissory notes, the defendant the three each July described, above secured a dated chattel mortgage, upon plaintiff’s third, which notes the fourth predicated. of fifth causes action are was up From time combine on defendant’s farm set fall in the of until it was on of taken foreclosure

215 December, at- 1930, the defendant mortgage in month of flax, tempted harvesting crops grain and to use in of it parts his em- repeatedly broke, of it the defendant and working continually ployees plaintiff’s mechanics were sat- work repairing in make it an endeavor to 1400 isfactorily. acres In fall 1929 had of the defendant crop harvesting in harvest, in and he used the crops half period about days, for a 55 with it worked operate, repair of that time in it and make it an endeavor to plain- perform and it never warranted. The did the work as representative Heuseman, and farm, Henry tiff had its days harvesting mechanic, another in the season several 1929, endeavoring perform fix make it the combine and In season, crop, work. of his 1400 acres there were 152 flax, combined, resulting 80 acres of which acres he yield per acre, remaining a one and one-half bushels Minneapolis- acres he cut with binders and threshed with separator Moline previously purchased had from which he obtaining thereby yield predecessor, per bushels acre. flax The 80 acres of were cut lands be- longing Faaborg, crop to S. C. the defendant had a which wheat one-half interest. The 250 acres of defendant harvested early separator, use of binders wished and a straw, yielded acre; have the 15 bushels to days remaining about 30 900 acres of wheat he com- later the yielded per bined, which bushels acre. As to this about 6% I acreage it; he testified: “I had the owner all of I full in 72 in, 300 acres had a full interest interest I Faaborg’s flax. I on Mr. land had acres of had acres I had in, three-fourths interest acres on Lamere’s in, interest and the balance was half.” three-fourths year In 1930 the from which defendant had acres crops. flax, “I had 272 to harvest He testified: acres of *8 belonged Mr. my own, which 200 acres was the balance Faaborg. 200 Of My in the undivided. interest acres was I Faaborg’s get 72 I three-fourths. was to acres of it 80 balance wheat. Some of also had acres of oats and the 216

was cut with the binders some with the combine. hadWe two working. Minneapolis combines We used the the first two days cutting crop in used also another com- ‘ ’ bine, Rumely, belonged Rumely to Frank French. The * # # cut about with acres. We cut 100 acres first both combines field, in one a different and then we went into field, but acres, that one the balance field we cut the field paid was cut dollar an I French a binders. for Rumely acre Minne- use of the because the apolis ready shelling. was not grain was Used binders ready. got because the I cut combine wasn’t out and Iwhat I could with what could. the binders order to save crop. I crop know the condition in 1930. It a short of the was ripened It early ripened He short.” fast and was harvesting crops period used the combine in for a days, only time, of 37 working but it was of the about half although practically fall. The had remade it that plaintiff’s rest of the time was consumed servants and employees, employees, assisted defendant’s an en- constantly up fix deavor to work. was so it would breaking parts operations causing trouble, lost a considerable amount of wheat. When the two combines were used in harvesting patch,- yield the wheat on the 100-acre averaged 14 Minneapolis bushels to the acre. When the com- yield used bine alone was of wheat but 5 bushels threshed, acre. There were acres cut with a binder yielded 8 which bushels to the acre. condition of when

As to the the combine first used on the immediately farm after its delivery, defendant’s defendant testified expert, that with assistance first farm, up sent to the defendant’s combine was set and run thereabouts, they for half an hour or shut it down be- “sprung cause of a which runs the full width shaft” sprung machine. “After the shaft was we had send ” * * * delayed Minot for another one them “a couple repairs.” days meantime, In while waiting repairs waiting for the he cut some combine, arrival *9 re- The was of his new shaft grain by the nse binders. place by plaintiff’s representative put ceived was and was combine defendant, with the after which the aid of did operation. try-out taken a field and a out into straight sideways satisfactorily; rather than not work it ran de- ahead, time. The skidded all and the front wheels too your run testified: “You had to canvasses fendant further you tight your guides, when keep there, it order to and tight, your along run and catch it would come that wheels your canvas your course, and of it would tear canvasses reel, split they your have reels. And clutch their reel, it heavy, that big, long reel, with that would hold caught it slipped, you anything, tight it run it so tight, strip your break, you would reel. If didn’t run good running. heavy big stop a wind would Too it from expert reel thing. for the size of the The was there when up. Mr. it, occurred and he fixed tried to fix it That was Heuseman. Heuseman He would was there off on all fall. days, days, be there for two three sometimes would gone so, days, week or about a two or and come back again. During up platform and that time he tried to line broke, reel. up tried to fix The main shaft in the reel broke, thing heap truss went rod down in a whole up longer we rods put fixed it all and made the truss them that, out further. Mr. Mr. Lamere under Heuseman and did ” ** (cid:127) Mr. direction. Heuseman’s only During actually the season of the combine worked portion they and the half of the time other the time were repair there, it. engaged in an effort Heuseman was Mr. together factory Heuseman, man from helping with a Mr. fix oper- the reels clutches make in an endeavor employed Lamere, handy farm, about the man ate. Mr. put on the new reel arms Mr. while pitman there, driving and also a new was Heuseman breaking all Mr. kept the time and pitmans sickle. The enough ash, strong that were out made some Lamere good functioned as approved, and it Mr. Heuseman they kept had theretofore had. The chains on the combine breaking company’s mechanic, time, all the They assistance employees, repaired of defendant’s them. every pretty nearly day broke and sometimes two or three day. regard times He “With I further testified: to what part my called on the first examination or side- side-draft ways pull regard the machine, the defect in men- tioned to Mr. Nelson all of Mr. Heuseman and them. *10 complaint Vollmer I during was out there that time made and complaint they about that to him. I made to all of them and they up me up told would fix it have men fix there to go. reports I and make it made several of this to these nature persons during the regard harvest season. Yollmer told me in sideways pull they up to this machine would fix it get up. would a man there They that would fix it tried to remedy it, it, tried to fix had a man out there. Mr. Heuseman working on year, that that 1929. fixing Relative to canvas, Mr. Lamere renewed rollers, all them smaller rollers. They all they pieces. wore out on the end went to Wore just They’re out no time. a block of about wood that size I (indicates). think Mr. there, Heuseman was or seen the work, helped I but don’t remember whether he with some of them. guides rollers, guide

“There no up are is but there platform up above on elevates into machine. guides wore in no time These out had we to make some. Mr. Heuseman was there when Lamere made them. He made plow lays, old longer them out of and made them wider and In testimony and heavier.” was corroborated Will- and others. iam Lamere August 14,

On agent, or about W. D. Kinsella, defendant called at his farm in an endeavor owing the balance to collect from the defendant to the thereupon account, entered into agreement on a written him which reads as follows: “For and in considera- Minneapolis Implement of the tion Moline Power extend- Co. ing my notes as follows Note No. 1191 Dated 7-30-1929 $1175.00 Due be 1930.—Note No. Demand Extended 9- 9-1-1930 be Dated 7-30-29. Due extended 9-1-1931 1-1931—Note 7-30-1929 to be No. Dated due of the furnish- extended to Co. also consideration ing repairs doing me service work free and certain certain my receipt hereby Tractor, Combine and of which is acknowl- above, all release edged, hereby I consideration Implement re- Minneapolis from further Moline Power Co. sponsibility full and free agree this constitutes understood release all or other claim—it is also warranties year from also my for Tractor is extend one *11 Inc., Wenholtz, 82, 256 Rumely Co., 1085, 80 Mont. Pac. T. v. warranty. is as the breach of controlling to showing war- the facts breach of the A of all of recital con- original terms the of the ranty waiver of notice under would un- accessories the purchase tract of say, they were prolong opinion. Suffice to necessarily this by evidence. abundant established the counsel that plaintiff’s learned is the contention

It purchase of the combine and accessories for the contract may parol by be varied writing not to having reduced been provi the negotiations under respecting preliminary evidence Codes, the decisions Eevised sions of section cor Conceding this be a construing the same. of this court by made the representations de law, the rect statement nothing than were more and Yollmer agents Nelson fendant’s warranty being con- defendant’s written talk, trade tract in by preponder- truth breached, and in fact as shown ance necessary us the evidence. that it is at all So applicable consider, discuss, the rule to the variation by written parol instruments The terms of the writ- evidence. warranty ten breached, were shown to have been plaintiff having agents representatives had its work con- at tinually satisfactorily in endeavor operate to make the combine avail, thereby without necessity of the defendant waived giving required it notice in writing by as written warranty. contract of

2. agreement But what of the defendant’s written entered August 14, whereby

into farm at the defendant’s agreed plaintiff damages arising to release the out from all of the contract for the sale of the accessories? combine and plaintiff

It is pleaded noted that this contract was not reply cross-complaint. original its to the defendant’s It was apparently afterthought. an At the of the defend- conclusion testimony trial, requested ant’s at was plaintiff granted permission, reply objections, over amend agreement. pleading per- the execution of such It was then “T,” mitted to be introduced in evidence as Exhibit jury respect objection. was instructed with thereto without plaintiff is However, placed it manifest no reliance such agreement, December, as later foreclosed mortgage given security payment chattel as for the of the amount due on the three notes of the com- accessories, bine and the amount received such sale credited notes as of date December 1930. Thus it disregarded plaintiff entirely is clear such settlement agreement. permitted cannot absolve itself reason provisions agreement, settlement view of wholly regard thereto, fact without little over later, mortgaged property applied months it sold the proceeds Moreover, the fact this indebtedness. agreement binding not considered *12 on conclusively by the institution this action demonstrated attempted 20, 1931, on the so January to recover notes to by the maturity provided date, the extended before as to dne the its face agreement. It is absurd terms of such as a defense such of settlement allege contract was not entirely. repudiated it it is to have thus shown action. properly support of the admitted defendant, without 3. As the sustained “If jury follows: objection, instructed court against the counterclaim you upon his find for the defendant if damages, you find plaintiff, of defendant’s the measure suf has the defendant preponderance of the evidence any, excess, if representing the damages, is the amount fered had at have combine would the value which said time, to purchase, at time of its over actual value any, compensation loss, if for the must be fair added use good faith to incurred the defendant an effort combine, not, however, exceeding $11,049.00, sum of said however, plaintiff upon the said less, the amount due the promissory notes, $947.00 five to-wit: The sum of interest with eight per per cent from October thereon the rate of annum at 15, 1928, less interest thereon from amount of with $50.33 January 24, paid, 1930, same was to-wit: date the here promissory first notes being total amounts of the two (and mentioned, plus payment interest less the inabove payment upon payment), from the date the interest said (being sum made; $2875.00 sum of total of and also the combine), for said hereinbefore referred notes per eight per cent annum with interest thereon at the rate of $1290.75, July 30th, sum of from exclusive December paid thereon the total amount January paid thereon on $43.88 sum of further paid from the amount so date of interest total words, compute you In other are payments thereof. plaintiff upon amount due from the defendant to total inter plaintiff’s complaint, with promissory mentioned in *13 222 you

counterclaim, any you must deduct from amount may plaintiff, find be to defendant from due the the the promissory plaintiff’s amount due on the notes mentioned complaint.”

And “That, may further: defendant recover dam- whether ages plaintiff, upon among herein from counterclaim, the his wastage other things, for the alleged of the time of himself alleged and of his threshing employees, crew and effort the repair to or question, use the machine in and the value of time, together and their alleged the of cost use of his truck remedy auto, effort to de- reasonable these fects, if existed, paid such and also amount the hire for of combine, any paid, another if were other combine hired, were crops to combining you do work of (if things preponderance find from the of the evidence that these done), depends upon were question toas whether or not damages may fairly supposed such be to have been within the contemplation parties they of the into entered con- combine, tract they and whether were might naturally expected such as result from its viola- tion, occurred, if such proximately violation and were caused thereby. alleged All of the items claimed herein, subject his counterclaim are law; the above rules of all of the above elements must be defendant, by preponderance established evidence, find, you before can damages, as to the defendant’s counterclaim, his said in favor of defendant herein.”

These so instructions the court constituted the law (secs. 8680, Codes, 1921; the case 8679 and Rev. Daniels Co., 284, 56 184 836; v. Granite Bi-Metallic C. Min. Mont. Pac. 155, 289, Blair, 1235; v. 65 211 Wilson Pac. 27 A. L. Mont. R. Larsen, 214; First Bank 65 Mont. 211 State v. Pac. Dietz Rabe, 65 211 343; Scott, v. Mont. Pac. v. Harwood 65 Mont. controlling. 316) Pac. are

There sufficient which to evidence base rendered, amount of the verdict the trial court hav trial, ing plaintiff’s denied the motion a new is not (Ball interfere. v. this court province within 871; Clark, v. Cohen Pac. Gussenhoven, 29 Mont. noteworthy 775.) is also 119 Pac. Mont. objection verdict save the amount no raises upon the assignments error incorporated in based various damages sus- as to the items of evidence

admission of certain carefully read and con- We defendant. have tained alleged errors record and the sidered the entire judgment, good to disturb assigned, see no reason can *14 it will stand affirmed. and, accordingly, Calllaway and Associate Justices Chief Justice Angstman, Ford and Matthews concur. Rehearing.

On Motion for January 18, 1933.) (Decided Opinion: PER CURIAM. rehearing presented is

On motion for but matter one point made worthy special deem The is we comment. original stipulated, since in it is contract effect, that, machinery warranted, if the defend was not as remedy contract, ant’s sole rescission of the would be damages. way Re remedy cannot avail himself of Taylor & is had cases of Rickards v. Aultman liance Co., Advance-Rumely Mont. 210 Pac. 82, M. Thresher Terpening, Mfg. Co. v. 193 Pac. Best Mont. Hutton, 49 653. Co. v. Mont. Pac. But none of these point under facts cases is shown in the record. question

This case tried whether there had warranty; asserting the defendant been a breach of there been, plaintiff denying This had that issue. is shown throughout pleadings, proceedings trial, by directly by objection. presented instructions without is only in the trial of the action The reason advanced why as to the defendant not could recover

was that he had waived them T. the execution of Exhibit But, pointed as we have out opinion, position untenable.

By reason of parties beginning, the conduct of the from the throughout stipulation as well as their trial, attitude respecting remedy contract, original rescission to, above alluded was waived.

The rehearing motion for is denied. who were Associate Anderson, Justices Stewart argued decided, members of the court this cause was part take no in this decision.

JONES, NORTHWESTERN Administratrix, Respondent, v. Appellant. CO., AUTO SUPPLY

(No. 6,951.) 16, 1932. (Submitted November Decided 31, 1932.) December (2d) Pac.

[18 305.] balance notes five together attorney’s costs. mately $3,000, interest, fees and defend- Three the notes were executed and delivered July payee, 30, 1929, as two of ant to the Minneapolis Threshing Machine them, in favor Com- $987, pany aggregating dated payee, October By duly plaintiff. answer which were indorsed to the

notes executed alleged in payment; August M, further that on agreement writing plain- an entered into between plaintiff extending tiff and in consideration of the payment time representing of all of the notes the amount due on the accessories, plaintiff which the recovery, agreed now seeks the defendant plaintiff from liability by to release the all further reason of warranty pur- entered into its contract at the time of the pleadings appears chase sale. From the the com- bine, machinery mortgaged attachments other were to the plaintiff defendant, and in the fall mortgage applied proceeds foreclosed the "the sale three notes executed pur- on the defendant property, as shown indorsements chase made thereon. regularly jury trial The came on before cause June general resulted in a verdict favor of the de- fendant, awarding him as the sum $2,908,

with In notes transactions Nelson. first two plaintiff’s plaintiff’s complaint tioned in were predecessor machinery equipment, purchase one being sum Lake, 15, 1928, dated at Medicine October for the per payable of $475, eight per annum, with interest at cent 1930, date, place October of exe being the other of like cution, rate, $500, October payable interest for the sum payment $50.33 latter note January 24, illiterate, made 1930. The defendant sign name, read. while is able to his he cannot July upon Mr. On or called about the defendant place Nelson then Lake, business Medicine at purchase “Minneapolis-Moline Com- interested of a telephone By then talked with Nelson bine.” called Mr. represen- Point, field F. Wolf L. Yollmer at immediately day the defend- thereafter on that tative, and proceeded Point, in the defendant’s ant Nelson Wolf Yollmer, automobile, confer with Mr. with whom de- reposed confidence, having acquainted also fendant was period about five dealings him for had business him meeting Yollmer, the defendant stated to years. Upon Minneapolis-Moline “16-foot that he wished

notes I release of partial furnished due thereof and that date Type B 4358 from their No. mortgage releasing chattel Tractor security. “(Signed) Wilfred Parent. D. “Witness W. Kinsella. Swedburg.” C. “H. dam agreement of release of Save for execution ages $1,175 payment $43.88 made of note dated original contract, 30, 1929, evidencing July unlike that case of Advance- awarded the

notes said deducting principal interest from the est, but your in the event thereon, notes, payments made the defendant’s in favor of the verdict is