Buchanan v. Minneapolis Threshing Mach. Co.

• Decision Date: 22 April 1908
• Citation: 116 N.W. 335,17 N.D. 343
• Parties: BUCHANAN v. MINNEAPOLIS THRESHING MACH. CO.
• Court: North Dakota Supreme Court

17 N.D. 343

116 N.W. 335

BUCHANAN

v.MINNEAPOLIS THRESHING MACH. CO.

Supreme Court of North Dakota.

April 22, 1908.

Syllabus by the Court.

The mere fact that a notice of the failure of a machine to work as warranted is not given in the manner prescribed by the written warranty or is not given at all is of no avail as a defense, where the company to whom such notice is to be given acts under some notice given under the warranty and sends an expert to examine the machine, and does everything that it could have done had such notice been properly sent.

An objection that certain evidence called for by a question is incompetent, irrelevant, and immaterialis too general ordinarily, and is for that reason no objection at all, so far as the objecting party is concerned.

The trial court gave as part of an instruction the following language: “The contract will be sent to the jury box with you, gentlemen, and you can wrestle with it at your pleasure. I cannot read it in the present light.” Held, not an unfavorable comment on the contract as having been printed in small type.

The charge of the trial court should be considered in its entirety, and error cannot be predicated on parts thereof, where the charge as a whole is not subject to the objection made to a part thereof.

An objection to evidence based on the lack of a pleading to support it cannot be made for the first time in the Supreme Court.

Appeal from District Court, Foster County; E. T. Burke, Judge.

Action by John Buchanan against the Minneapolis Threshing Machine Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Turner & Wright, for appellant. T. F. McCue and S. E. Ellsworth, for respondent.

MORGAN, C. J.

This is an action for damages based upon the following facts as set forth in the complaint: That on the 15th day of July, 1899, plaintiff purchased from the defendant one Minneapolis threshing separator with attachments, and agreed to pay therefor the sum of $850, and that, pursuant to the sale of said separator and the terms of the contract, the plaintiff executed and delivered to the defendant his promissory note dated August 24, 1899, for $850, due November 1, 1899, with 7 per cent. interest from date; that said separator was sold under an express warranty, whereby the defendant agreed and warranted that the separator was well made of good material, and that when said machinery was properly operated by competent persons it would do the work for which the same was intended as well as any machinery of the same size manufactured in the United States, and that, if the same did not do the work for which it was intended as well as any other machinery, the defendant would make the same fill such warranty, and that upon failure to do so the plaintiff might return said machine to the defendant; that the separator did not work in accordance with said warranty, for the reason that the same was not made of new materials, and that the separator was old and badly damaged machinery painted and fixed up and repaired to represent new machinery; that upon the failure of said separator to do the work as warranted the plaintiff immediately gave notice of that fact to the defendant as provided for in said warranty, and that in pursuance of such notice the defendant sent an expert to fix said machine, and that the said expert failed to make said machine work, and that in consequence of such failure the plaintiff rescinded the contract and returned the machine to the defendant at the place specified in the warranty, and afterwards gave the defendant notices in writing of the return of said machine and demanded from the defendant the return of the purchase price; that the defendant failed to return the plaintiff's note, but on the contrary sold and transferred the same in due course of business to one Lane, and that said Lane brought an action against the plaintiff upon said note and recovered judgment against the plaintiff for damages and costs amounting to the sum of $1,022.12, which said sum the defendant paid on the 23d day of November, 1901. The plaintiff demands judgment against the defendant for the said sum of $1,022.12, with interest thereon at the rate of 7 per cent. per annum from the 23d day of November, 1901. The answer is a general denial, and in addition thereto it alleges that the plaintiff failed to comply with the terms of the written warranty, and in consequence thereof is not entitled to any damages on account of the alleged breach of the warranty of said machinery. The jury found in favor of the plaintiff for the sum of $850, with interest at 7 per cent. thereon from the 24th day of August, 1899. A motion for a new trial was made by the defendant and denied, and judgment was thereafter entered on said verdict, from which the defendant has appealed.

It is claimed that no sufficient foundation was laid for the introduction of secondary evidence of the contents of a notice claimed to have been sent by the plaintiff to the defendant that the machine had failed to work according to the warranty contract. The plaintiff demanded the production of the notice from the defendant at the trial, and defendant's counsel there stated that no such notice was in defendant's possession or had been received by it. Thereupon the court permitted plaintiff to show by oral evidence what the contents of the notice were. The objection to such evidence was that no sufficient effort had been shown to find the copy that had been retained by plaintiff. The precise objection was that no inquiry had been made of the person with whom the notice had been left about five years previous to the trial. Said person had been dead about three years prior to the trial. If there was a waiver of the giving of this notice by the acts of the company itself through its authorized agents, then the question of the giving of the notice became immaterial, and the admission of such evidence, if erroneous, would be without prejudice. We are of the opinion that the authorized representative of the company responded to some one of the notices claimed to have been given by mail or delivered personally under the contract, and the fact whether sufficient foundation was laid for secondary evidence of the contents of the notice that was claimed to have been mailed could not be urged by the company in view of its response to some notice. The general agent of the defendant company was a witness at the trial, and was interrogated at considerable length in reference to the circumstances under which the expert Foster appeared and tried to make the machine work as warranted. It appears as undisputed that Foster was a regular expert in the employ of the defendant. We think it has been shown, and that it is the only proper inference from the general agent's entire evidence, that the expert was instructed from the general office to attend to this machine pursuant to notice of some kind from the plaintiff. He says that he knew of an expert coming to Carrington to look after this machine, and that he came with instructions from the home office. He was asked: “Do you know of an expert coming here to Carrington to look after this machine? A. I did. * * * No; I was not acquainted with him. I do not believe I ever saw him but once at the factory. He came with instructions from the home office. Q. You said he came with some instructions from the home office? A. I can't say he came with any particular instructions from the home office. I presume he did; but do not know from my own knowledge.” He was further asked: “Do you know if Mr. Foster came here to look after this machine as a result of information which the home office had received at that time or thereabouts?” He answered: “All I know is what I presume about that. That was taken up direct with him. He had no instructions from me. Q. Did you learn from your conversation with the manager or general agent at...