Bratberg v. Advance-Rumely Thresher Company, Inc., a Corp.
| Decision Date | 22 August 1931 |
| Docket Number | 5872 |
| Citation | 238 N.W. 552,61 N.D. 452 |
| Court | North Dakota Supreme Court |
Rehearing Denied October 23, 1931. [Copyrighted Material Omitted]
Appeal from the District Court of Stark County, Lembke, J.
Affirmed.
Lawrence, Murphy, Fuller & Powers, for appellant.
A law is unconstitutional, if violative of the fundamental and vital principle of liberty of contract. Allgeyer v. Louisiana, 165 U.S. 583; Adair v. United States, 208 U.S. 161; Coppage v. Kansas, 236 U.S. 1; Adkins v. Children's Hospital, 261 U.S. 525; Lochner v. New York, 198 U.S. 45, 49 L. ed. 937, 25 S.Ct. 539.
The police powers of the state relate to the safety, health, morals and general welfare of the public. Property and liberty are held on such reasonable conditions as may be imposed by the governing powers of the state in the exercise of such powers, and with such conditions the 14th Amendment was not designed to interfere. Mugler v. Kansas, 123 U.S. 623, 31 L. ed. 205, 8 S.Ct. 273; Re Kemmler, 136 U.S. 436, 34 L. ed. 519, 10 S.Ct. 930; Crowley v. Christensen, 137 U.S. 86, 34 L. ed. 620, 11 S.Ct. 13; Re Converse, 137 U.S. 624, 34 L. ed. 796, 11 S.Ct. 191.
The right to contract about one's affairs is a part of the liberty of the individual protected by the due process clause of the 5th Amendment. New York L. Ins. Co. v. Dodge, 246 U.S. 357, Ann. Cas. 1918C, 593; Butcher's Union S.H. & L.S.L. Co. v. Crescent City L.S.L. & S.H. Co. 111 U.S. 746, 28 L. ed. 585, 4 S.Ct. 652; Muller v. Oregon, 208 U.S. 412, 52 L. ed. 551, 28 S.Ct. 324, 13 Ann. Cas. 957.
"Every personal or private law which proposes to destroy or affect individual rights or does the same thing by affording remedies leading to similar consequences is unconstitutional and void." Codding v. Goddard, 183 U.S. 105.
"A provision giving the seller the right, in case the property does not conform to the warranty, to remedy the defect and make the property so conform, or to substitute another article in its place, is valid and binding on the parties." Notes in 32 L.R.A.(N.S.) 215 and 50 L.R.A.(N.S.) 756.
While every possible presumption is to be indulged in favor of the validity of a statute, Sinking Fund Cases, 99 U.S. 718, the courts must obey the Constitution rather than the lawmaking department of the government, and must, upon their own responsibility, determine whether, in any particular case, these limits have been passed. Marbury v. Madison, 1 Cranch, 137.
Classification must have some reasonable basis. Arbitrary discrimination or selection is not classification. Soonhing v. Crowley, 113 U.S. 703, 28 L. ed. 45; State ex rel. Durval v. Hamilton, 20 N.D. 592, 129 N.W. 916; Edmonds v. Herbrandson, 2 N.D. 270, 50 N.W. 970, 14 L.R.A. 725; Beleal v. Northern P.R. Co. 15 N.D. 318, 108 N.W. 33; Gulf, C. & S.F.R. Co. v. Ellis, 165 U.S. 155, 41 L. ed. 668, 17 S.Ct. 255; Powers Elevator Co. v. Pottner, 16 N.D. 359, 113 N.W. 703.
The 14th Amendment is violated when there is not fair reason for a statute that would not require with equal force its extension to others whom it leaves untouched. M.K. & T.R. Co. v. May, 194 U.S. 267, 48 L. ed. 971.
Public policy requires that all persons competent to contract shall have the utmost liberty to do so, so long as their contracts are not contra bonas mores or prejudicial to the general welfare. Adinolfi v. Hazlett, 242 Pa. 25, 48 L.R.A.(N.S.) 855; Waters v. Wolf, 162, Pa. 153, 42 Am. St. Rep. 815, 29 A. 646; Godcharles v. Wigeman, 113 Pa. 431, 6 A. 354.
H. A. Mackoff, for respondent.
Where a notice of motion for a new trial is given and served within the statutory time for appeal, but is not presented to and heard and determined by the court until after the expiration of the time for appeal, the trial court has no jurisdiction, and the final character of the judgment is not suspended by such proceedings. Grove v. Morris, 31 N.D. 8, 151 N.W. 779; Higgins v. Rued, 30 N.D. 551, 153 N.W. 389; Garbush v. Firey, 33 N.D. 154, 156 N.W. 537; Skaar v. Eppeland, 35 N.D. 116, 159 N.W. 707; Pratt v. Beiseker, 17 N.D. 243, 115 N.W. 835; State v. Templeton, 21 N.D. 470, 130 N.W. 1009; Gross v. Meyers, 31 N.D. 116, 159 N.W. 707, 163 N.W. 725; Bovey-Shute Lbr. Co. v. Donahue, 175 N.W. 205; Weigel v. Powers Elevator Co. 50 N.D. 776, 198 N.W. 121.
"The first ten amendments to the Federal Constitution do not apply to the states but constitute limitations on the power of the Federal government only." 12 C.J. 744; Weems v. United States, 217 U.S. 349, 54 L. ed. 793, 30 S.Ct. 544, 19 Ann. Cas. 705; Keller v. United States, 213 U.S. 138, 56 L. ed. 737, 29 S.Ct. 470, 16 Ann. Cas. 1066; Twining v. New Jersey, 211 U.S. 78, 53 L. ed. 97, 29 S.Ct. 14; Howard v. Kentucky, 200 U.S. 164, 50 L. ed. 421, 26 S.Ct. 189; Jack v. Kansas, 199 U.S. 82, 25 L. ed. 550; Le Master v. Spencer, 121 C.C.A. 416, 203 F. 210; Re Mohawk Overall Co. 210 N.Y. 474, 104 N.E. 925; Ex parte Simmons, 5 Okla.Crim. 399, 115 P. 380; State v. Norvell (Tenn.) 191 S.W. 536.
The liberty protected by the constitutional guarantees as to due process of law is that of natural and not of artificial persons. 12 C.J. 1198, note 18; Western Turf Asso. v. Greenberg, 204 U.S. 359, 51 L. ed. 520, 27 S.Ct. 384; Northwestern L. Ins. Co. v. Riggs, 203 U.S. 243, 51 L. ed. 168, 27 S.Ct. 126, 7 Ann. Cas. 1104.
"All natural persons within the state, and all corporations doing business within the state or created thereby, hold their property and engage in their business subject to the police powers of the state." 12 C.J. 909; Dent v. West Virginia, 129 U.S. 114, 32 L. ed. 623, 9 S.Ct. 231; Minneapolis, etc. R. Co. v. Beckwith, 129 U.S. 26, 32 L. ed. 585, 9 S.Ct. 207; Powell v. Pennsylvania, 127 U.S. 678, 31 L. ed. 205, 8 S.Ct. 273.
The police power embraces regulations designed to promote the public convenience or the general welfare and prosperity as well as those in the interest of the public health, morals or safety. Chicago etc. R. Co. v. Tranbarger, 238 U.S. 67.
The state legislatures have broad discretion in the field of police regulation. Price v. Illinois, 238 U.S. 446; Arbuckle v. Blackburn, 191 U.S. 414; Schmidinger v. Chicago, 226 U.S. 572; Powell v. Pennsylvania, 127 U.S. 683; Armour v. North Dakota, 240 U.S. 510; New York v. Van De Carr, 199 U.S. 552.
It is the clear obligation of one challenging a police regulation to satisfy the burden of showing the injustice of the discrimination. Lindsley v. National Carbonic Gas Co. 220 U.S. 78; Gunn v. Soo R. Co. 54 N.D. 418, 158 N.W. 1004; Cotting v. Kansas City Stockyards Co. 183 U.S. 111; Chicago, B. & Q.R.R. Co. v. McGuire, 219 U.S. 549, 55 L. ed. 328.
On July 16th, 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 ft. 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 eight percent 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 two hundred acres of wheat on the southeast 1/4 of the southwest 1/4 of 32 and the northeast 1/4 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 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...
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