Axford v. Gaines
| Decision Date | 10 November 1923 |
| Parties | AXFORD v. GAINES. |
| Court | North Dakota Supreme Court |
Where during the course of the trial it first appears that counsel for the aggrieved party was induced to stipulate a change of place of trial by the alleged misrepresentations of the other party, it is at most discretionary with the trial court as to whether the cause should on motion be sent back to the county of its origin.
A party may not single out a limited portion of an instruction and predicate error thereon regardless of the effect of other portions of the instruction in limiting or modifying the portion complained of. If the whole instruction taken together states the law correctly, there is no error.
The testimony of an expert witness may not be arbitrarily rejected or disregarded, but, like the testimony of every other witness, it is to be considered by the jurors, who are to accord to it influence, much or little, according as it appeals to their intelligent and impartial minds, in view of all the facts and circumstances developed upon the trial and the common knowledge and experience of mankind.
Though a contract of warranty of personal property provides that, in order to rescind on account of a breach thereof, the buyer must return the property to the seller at a designated place, if after such breach and notice thereof the seller expressly states that he will not receive the property back, he will be held to have waived such provision.
Where the defense to an action on a contract of purchase and sale with collateral warranty was a breach of the warranty and a rescission of the contract by reason thereof, the burden was on defendant to establish both the breach of warranty and a compliance with the contract and Laws 1917, c. 202, § 69, governing the rescission.
Where the purchasers of a stallion under a warranty proffered its return after the discovery of its unsoundness and inefficiency, and the seller stated that he would not accept the horse back, and refused to return the purchase price notes or to furnish another horse, held, that the purchasers complied with Laws 1917, c. 202, § 69, as to rescission of the contract.
Appeal from District Court, Oliver County; H. L. Berry, Judge.
Action by Edward Axford, surviving member of the copartnership consisting of W. B. Otto and plaintiff, doing business under the firm name and style of W. B. Otto & Company, against A. D. Gaines. From a judgment for defendant, plaintiff appeals. Affirmed.L. H. Connolly, of Mandan, for appellant.
J. A. Hyland, of Bismarck, for respondent.
Action on a promissory note. Verdict for the defendant. From an order denying the plaintiff's motion for judgment notwithstanding the verdict or for a new trial, and from the judgment entered on the verdict, the plaintiff appeals.
The plaintiff was engaged in the business of selling stallions. He negotiated a sale to a number of Oliver county farmers. The defendant was one of these purchasers. He gave his notes for $240 as a part of the purchase price of the horse so bought. The plaintiff sold the horse under the terms of a written warranty in part as follows:
“It is mutually agreed that W. B. Otto & Co. [the plaintiff] do not guarantee said stallion strictly sound, but do guarantee him to be serviceably sound as a serving stallion, and agree that if said horse should not prove himself an average foal-getter * * * that the purchaser may return him to Charlotte, Mich., and there receive another horse of equal value. * * *”
The horse was delivered to the purchasers. The import of the defendant's testimony is that at the time of the purchase and thereafter the horse was suffering from a contagious disease, and was not serviceably sound; that he was not an average foal-getter, and that in fact no colts were begotten; that upon discovery of these facts the purchasers so advised the plaintiff, and offered to return the horse, demanding either that the notes be returned to them or that the plaintiff furnish another horse; that the plaintiff refused to accept the return, and refused to return the notes given for him, or to furnish another horse. Thereupon the defendant and the other purchasers notified the plaintiff that they would hold the horse for the plaintiff at the plaintiff's expense. Subsequently the horse died. This action is brought by the plaintiff to recover on the notes given by the defendant. The defendant answered, admitted the execution and delivery of the notes, set up the warranty and the breach thereof, and alleged that by reason thereof the consideration failed. The case was tried to a jury. A verdict was returned for the defendant. The plaintiff moved for judgment notwithstanding the verdict or for a new trial. The motion was denied. Judgment was entered in favor of the defendant. From this judgment, and from the order denying the motion for judgment notwithstanding the verdict or for a new trial, the plaintiff appeals.
On this appeal the plaintiff and appellant challenges the sufficiency of the evidence to sustain the verdict as returned and on which the judgment was entered, contending that it fails to establish a breach of the contract of warranty in question and a compliance with the terms thereof on the part of the defendant. The appellant further complains of prejudicial error on account of erroneous instructions, and also by reason of the action of the trial court in denying the plaintiff's motion made during the course of the trial to remand the case from the county of Oliver, where it was then being tried, to the county of Morton, where the case was originally begun.
[1] The plaintiff was a nonresident of the state of North Dakota. The action was begun in the county of Morton. The defendant made his affidavit reciting that he was not a resident of Morton county, but was a resident of Oliver county, and demanded a change of place of trial to the latter county, under the provisions of section 7418, C. L. 1913. Thereafter, and by reason of such affidavit and demand, the case was stipulated to Oliver county, where the trial was had. During the course of the examination of the defendant on the trial it was elicited that, while he farmed land in Oliver county, and had lived there the greater part of the time for many years, he claimed his legal residence in the state of Minnesota. Thereupon counsel for the plaintiff moved to have the case transferred back to the county of Morton. This motion was denied by the court. Appellant assigns this as error. The case had been taken to Oliver county by stipulation. The stipulation on the part of the plaintiff may have been induced by reason of the defendant's affidavit, but there is no showing other than by mere inference that the plaintiff was prejudiced. There is no question but that the court had jurisdiction to try the case in Oliver county. It appears to us that it was at most discretionary with the trial court as to whether it should be transferred back to the county of its origin. On the record as made, we do not believe that there was any such abuse of discretion as will at this time warrant us in disturbing the action of the trial court.
[2] The appellant complains of the instruction of the trial court as given to the jury touching the question of warranty. The particular instruction complained of reads as follows:
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