McCormick v. Kelly

• Decision Date: 15 July 1881
• Citation: 9 N.W. 675,28 Minn. 135
• Parties: Cyrus H. McCormick and another v. J. J. Kelly
• Court: Minnesota Supreme Court

9 N.W. 675

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 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 would make it so; that it was all right, and would do as good work as any machine in market, and it should be fixed up in first-class order, with the new parts referred to in the answer; that the defendant purchased the machine then, and gave the note, relying, as he testifies, upon the representations made. The evidence tends to show that at this time the defendant knew the defects in the machine of which he now complains.

At the request of the defendant the court instructed the jury as follows: "If the jury find, from the evidence, that the plaintiffs expressly warranted the machine for which the note in suit was given, and that the defendant was induced by such warranty to execute and deliver said note, the plaintiffs are liable for all damages which the defendant has sustained by reason of the breach of such warranty, and this liability is not affected by the fact that the defendant tried said machine before the making of said warranty." To this the plaintiffs excepted.

At the request of the plaintiffs the court instructed the jury as follows: "I charge you that where a general warranty is given on the sale of a machine, defects that were apparent at the time of the making of the bargain, and were fully known to the purchaser, cannot be relied upon as a defence to a note given for such machine, when the purchaser has such knowledge at the time of giving the same. (2) If you find that the machine was taken on trial under a contract to purchase, and that, after having fully tried it, the defendant gave his note therefor, he cannot offset against any such note damages arising from any alleged breach of warranty against defects known to the defendant at the time of settlement and giving of the note."

The court further instructed the jury in the following language: "A vendor may warrant against a defect that is patent and obvious. * * * You sell me a horse, and you warrant that horse to have four legs, and he has only three. I will take your word for it." The court then read in the hearing of the jury the following from Addison on Contracts: "When a general warranty is given on a sale, defects which were apparent at the time of the making of the bargain, and were known to the purchaser, cannot be relied on as a ground of action. If one sells purple to another, and saith to him, 'This is scarlet,' the warranty is to no purpose, for that the other may perceive this; and this gives no cause of action to him. To warrant a thing that may be perceived at sight is not good." The court then said to the jury: "Gentlemen, that is not the law of this state."

The court erred in these instructions to the jury. It has always been held that a general warranty should not be considered as applying to or giving a cause of action for defects known to the parties at the time of making the warranty, and both the weight of authority and reason...