9 N.W. 675 (Minn. 1881), McCormick v. Kelly

Citation:9 N.W. 675, 28 Minn. 135
Opinion Judge:Dickinson, J.
Party Name:Cyrus H. McCormick and another v. J. J. Kelly
Attorney:John Lind, for appellants. B. F. Webber, for respondent.
Case Date:July 15, 1881
Court:Supreme Court of Minnesota

Page 675

9 N.W. 675 (Minn. 1881)

28 Minn. 135

Cyrus H. McCormick and another

v.

J. J. Kelly

Supreme Court of Minnesota

July 15, 1881

Appeal by plaintiffs from an order of the district court for Brown county, Cox, J., presiding, refusing a new trial.

Order reversed, and a new trial awarded.

John Lind, for appellants.

B. F. Webber, for respondent.

OPINION

Dickinson, J.

This action was brought to recover the amount of a promissory note made by the defendant to the plaintiffs, for part of the purchase price of a harvester purchased by the former from the latter. The making of the note is not in issue; the only defence asserted being in the nature of a counterclaim for damages from an alleged breach of warranty, on the part of the plaintiffs, in respect to the harvester.

By his answer the defendant avers that he first took the machine on trial, and that, upon trial, it proved to be unsatisfactory and would [28 Minn. 136] not do good work, and that he notified the plaintiffs to take the machine away; whereupon the plaintiffs promised and agreed with the defendant to put the machine in good order and to furnish certain parts of the machine new, and warranted the machine to be well made, of good material, durable, and not liable to break or get out of order; that it would cut and elevate grain as well as any other machine, and was in all respects a first-class machine, and capable of doing first-class and satisfactory work as a harvesting machine; relying upon which promises, agreements and warranties, defendant purchased the machine, giving the note in question. The answer further alleges that the plaintiffs refused to put the machine in good order, or to furnish new parts for the machine, and sets forth a breach of the terms of the warranty.

By a reply the plaintiffs put in issue the making of a warranty, as well as the agreement to furnish new parts for the machine. The evidence on the part of the defendant tended to prove that he got the machine for trial before the commencement of the harvest of 1878; that it did not work well, although he used it to cut about 70 acres of grain; that he often made complaint to the agents of the plaintiffs, who urged him to keep the machine, and do the best he could with it; and that after harvest the agent of plaintiffs represented that it was as good a machine as there was in the market, and he...

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