Bratberg v. Advance-Rumely Thresher Co., 5872.

Decision Date23 October 1931
Docket NumberNo. 5872.,5872.
Citation61 N.D. 452,238 N.W. 552
PartiesBRATBERG v. ADVANCE-RUMELY THRESHER CO., Inc.
CourtNorth Dakota Supreme Court

OPINION TEXT STARTS HERE

Syllabus by the Court.

Under section 7955, Comp. Laws 1913, a notice of motion or other proceeding before a court or judge, when personally served, shall be given at least eight days before the time appointed therefor; and a notice for hearing on motion for judgment notwithstanding the verdict, or in the alternative for a new trial, served upon a party on the same day that the motion is noticed for hearing, is a mere nullity.

Syllabus by the Court.

Where there was no legal service of the motion until more than two months after the expiration of the time for appeal from a judgment, and there is no waiver of the service of legal notice, but on the contrary where the party entitled to notice makes a special appearance and objects to the jurisdiction of the court, the court has no jurisdiction to hear the motion.

Syllabus by the Court.

It is well settled in this jurisdiction that notice of motion for judgment notwithstanding the verdict, or in the alternative for a new trial, must be made and hearing thereon fixed within the time fixed by law for an appeal from the judgment.

Syllabus by the Court.

In the instant case, appellant appealed from the judgment specifying as error all the specifications alleged in the motion for new trial and including the denial of a motion for a directed verdict made at the close of the case, and every question raised on the motion for a new trial is before the court on appeal from the judgment, including the sufficiency of the evidence which was challenged by a motion for a directed verdict at the close of the case.

Syllabus by the Court.

Under the Fourteenth Amendment to the Constitution of the United States, a state may classify persons and objects for the purpose of legislation, if the classification is based on proper and justifiable distinctions, considering the purpose of the law. The mere fact that legislation is made to apply to certain classifications and not to others does not affect its validity, if it be so made that all persons subject to its terms are treated alike under like circumstances and conditions.

Syllabus by the Court.

Chapter 238 of the Laws of 1919, providing, “Any person * * * purchasing any gas or oil burning tractor, gas or steam engine, harvesting or threshing machinery for their own use shall have a reasonable time after delivery for the inspection and testing of the same, and if it does not prove to be reasonably fit for the purpose for which it was purchased the purchaser may rescind the sale by giving notice within a reasonable time after delivery * * *” (section 1), is a reasonable classification which affects and treats all persons subject to its terms in like manner under like circumstances and conditions, and is therefore constitutional.

Syllabus by the Court.

The due process clause of the Federal Constitution is not intended to interfere with the power of the state in the exercise of its police power to prescribe regulations for the protection and promotion of the welfare of the people. It is only subject to the qualification that the measure adopted for the purpose of regulating the exercise of the rights of liberty and the use and enjoyment of property must be designed to affect some public object which the government may legally accomplish, and it must be reasonable and have some direct, real, and substantial relation to the public object sought to be accomplished.

Syllabus by the Court.

Chapter 238 of the Session Laws of 1919, is a reasonable regulation of the sale of certain kinds of farm machinery, and is designed to affect a public object, viz. the protection of and the promotion of agriculture within the state, and all contracts contrary thereto are void as against public policy.

Syllabus by the Court.

Following Dwinnell v. Boehmer (N. D.) 234 N. W. 655, the provisions of chapter 238, § 1, Laws of 1919, section 5991a, Comp. Laws Supp. 1925, are a part of and must be read into any contract of sale of property therein described, notwithstanding any terms thereof to the contrary, and one having the right to rescind a contract for the purchase of personal property on the ground that the same was not reasonably fit for the purpose for which it was purchased may waive such right of rescission on condition that the property be made fit, and, if the condition be not complied with thereafter, exercise the right, provided he does so within a reasonable time.

Syllabus by the Court.

Whether machinery is reasonably fit for the purpose for which it was purchased, and whether a contract of purchase has been rescinded within a reasonable time or not, are questions of fact for the jury.

Syllabus by the Court.

A statement in writing as notice to the seller, describing the defects in the machine and signed by the purchaser is not inadmissible in evidence, because it is also signed by three others who purchased the same kind of a machine with the same defects.

Syllabus by the Court.

Where the question of the reasonable fitness of machinery for the purpose for which it was purchased is involved, evidence of what the agent of the company at the time of the sale said regarding the machine purchased and before the signing of the contract is admissible to show that the defendant knew at the time of the sale the purpose for which the plaintiff was buying the machine.

Syllabus by the Court.

The instruction requested, viz. “I instruct you that parties to this action by their written contract agreed upon an express warranty with respect to such machinery, and that this excluded all other express, implied or statutory warranties of quality or fitness, or capacity of goods described in such contract,” is erroneous, as it includes statutory warranties, and there was no error in refusing to give the instruction.

On Petition for Rehearing.

Additional Syllabus by Editorial Staff.

To constitute “duress,” it is sufficient if the will be constrained by the unlawful presentation of a choice between comparative evils as inconvenience and loss by the detention of property, loss of property altogether, or compliance with an unconscionable demand.

Appeal from District Court, Stark County; Frank T. Lembke, Judge.

Action by Oscar Bratberg against the Advance-Rumely Thresher Company, Inc. Judgment for the plaintiff, and the defendant appeals.

Affirmed.

BIRDZELL, J., dissenting.Lawrence, Murphy, Fuller & Powers, of Fargo, for appellant.

H. A. Mackoff, of Dickinson, for respondent.

BURKE, J.

On July 16, 1928, plaintiff entered into a written contract with the defendant for the purchase of one Rumely No. 3 Pr. combine harvester with standard equipment, also one 2-foot extension, one flax sieve, and one pickup attachment; the purchaser agreeing to pay the freight and charges from the factory, and upon delivery or tender thereof, settle therefor the purchase price of $1,581 as follows: $250 cash and notes at 8 per cent. from date, one note for $666 due September 1, 1928, and one note for $665 due September 1, 1929. All notes to be secured by first mortgage on said machinery, and also by a mortgage on one-half interest in 200 acres of wheat on the southeast quarter of the southwest quarter of 32 and the northeast quarter of 31, 139, 93. The machinery was sold under the following warranty.

(2) Said machinery (except belts, magnetos, and other accessories and parts not manufactured expressly for seller, none of which are warranted) is purchased and sold upon and subject to the following expressed warranty and agreements, and none others: When properly adjusted and competently operated according to seller's instructions on land or grain in suitable condition it will be capable of doing as good or better work than any other machine of the same kind, size and rated capacity working under like conditions on the same job.

(3) Seller agrees to repair or replace free, F. O. B. factory, any part (except parts not warranted) which with proper use proves defective during the first three months after delivery, provided the defective part is returned to seller's branch through which it was sold, charges prepaid, within four months after delivery, and seller on inspection is satisfied it is defective. Remedy and damages for failure to repair or replace defective parts shall be limited to the cost of such part or parts, as fixed by seller's current repair price list.

(4) Purchaser agrees to give each machine a fair trial in the manner aforesaid as soon as possible after delivery, and within five days after its first use, which, it is agreed, is a reasonable time for purchaser to inspect and test same, for latent, patent or other defects and if he shall claim it fails to fulfill said warranty he shall give seller written notice by registered letter addressed to LaPorte, Indiana, and also at seller's branch place of business through which said machine was sold, mailed within four days from the date during said trial period when such defect or failure first appears, specifying the machine and in what particular it fails to fulfill the warranty, and allow a reasonable time for seller to send a competent man to examine it and put in order to comply with this contract, purchaser agreeing to render friendly assistance without compensation for labor or material furnished; or allow seller, at its option, to substitute a machine or part which when tested under like terms and conditions as to notice and otherwise shall comply, and upon failure so to do the purchaser shall immediately discontinue the use of said machine, or substituted machine, shall place the same, in as good condition as when received, at the disposal of seller at the place where he received it, free of charge, give seller immediate written notice thereof, and this sale and purchase of such defective machine or part shall be considered rescinded; seller shall return the money, notes...

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