Aultman, Miller & Co. v. Clifford

• Decision Date: 27 October 1893
• Docket Number: No. 8399.,8399.
• Citation: 55 Minn. 159
• Parties: AULTMAN, MILLER & CO. <I>vs.</I> MICHAEL CLIFFORD.
• Court: Minnesota Supreme Court

Page 159

55 Minn. 159

AULTMAN, MILLER & CO. vs. MICHAEL CLIFFORD.

No. 8399.

Supreme Court of Minnesota.

Submitted on brief by respondent, argued by appellant, October 16, 1893.

Reversed October 27, 1893.

Appeal by defendant, Michael Clifford, from an order of the District Court of Traverse County, C. L. Brown, J., made July 30, 1892, granting plaintiff's motion for a new trial after verdict for defendant. The plaintiff is a corporation.

A. S. Crossfield, for appellant.

E. T. Young, for respondent.

BUCK, J.

The plaintiff brought suit against the defendant in the district court for the sum of $110, upon the instrument, of which the following is a copy viz.:

"July 13th, 1891. `I have this day ordered of Aultman, Miller & Co. one seven-foot Buckeye binder, for which I agree to pay one hundred and forty dollars, — note for one hundred and ten dollars, and his old McCormick binder; three fall payments, at eight per cent. The binder to be delivered on or before July 25th, 1891.'"

Before the last-named date the parties substituted a six-foot binder, with bundle carrier, in the place of the seven-foot binder mentioned in the original order, but upon the same terms. The defendant refused to execute the notes, for the reason that the binder was not such as plaintiff represented and warranted it to be. In the month of December following, this action was commenced for the full amount of the three notes mentioned in the order. The defendant answered, and alleged that at the time of ordering said machine, and as part of the terms of the contract of said purchase, plaintiff orally represented that it would furnish a binder to be of good material, well made, light draft, and as good as any other machine manufactured for the purpose of cutting and binding grain, and that the binder so to be furnished would in fact cut and bind grain as well as any other machine manufactured for such purpose; and that defendant, relying upon such representations, was thereby induced to give such order.

Upon the trial the evidence fully sustained the contention of the defendant, and the jury so found.

Before submitting the case to the jury, the plaintiff asked the court to instruct the jury to find a verdict for plaintiff, for the reason that the contract of sale in this case was in writing, and contained no warranty, and that, therefore, no oral warranty could be shown to vary the terms of the written contract. The court denied this motion, and the plaintiff excepted. Afterwards the plaintiff moved for a new trial, upon the minutes of the court, and it granted a new trial, holding that this case is controlled by the decisions of this court in the case of Thompson v. Libby, 34 Minn. 374, (26 N. W. Rep. 1,) and Kessler v. Smith, 42 Minn. 494, (44 N. W. Rep. 794.)

Nothing in this opinion is to be construed as in any manner trenching upon the rule or doctrine laid down in those cases.

This was an executory instrument. The plaintiff had twelve days in which to furnish the binder, and the notes were to be executed in the future. It does not appear that the binder was in existence at the time the order was given. The defendant had no opportunity to inspect it or test its fitness or capability for doing the...