Buckley v. Advance Rumely Thresher Company

• Decision Date: 16 May 1921
• Docket Number: 21589
• Citation: 183 N.W. 105,106 Neb. 214
• Parties: ORVILLE E. BUCKLEY, APPELLEE, v. ADVANCE RUMELY THRESHER COMPANY, APPELLANT
• Court: Nebraska Supreme Court

183 N.W. 105

106 Neb. 214

ORVILLE E. BUCKLEY, APPELLEE, v. ADVANCE RUMELY THRESHER COMPANY, APPELLANT

No. 21589

Supreme Court of Nebraska

May 16, 1921

APPEAL from the district court for Thurston county: GUY T. GRAVES JUDGE. Affirmed.

AFFIRMED.

Howard Saxton and Good & Good, for appellant.

R. E Evans and Sidney T. Frum, contra.

DEAN J. ROSE, J., not sitting.

OPINION

DEAN, J.

Plaintiff is a dealer in agricultural implements. He sued to recover the purchase price of a tractor gang plow, alleging misrepresentation and breach of warranty. A jury was waived. Plaintiff recovered a judgment for $ 1,286.25, which included the purchase price, interest and freight. Defendant appealed.

Though there is some conflict in the evidence the following material facts seem fairly to be established. The tractor plow was purchased by plaintiff through G. Mattison, one of defendant's agents, pursuant to the terms of a written contract executed September 8, 1917. A warranty is indorsed on the contract, of which it is a part, which reads: "Said machinery is warranted to be well made and of good material, and with proper use capable of doing as good work as any other machine of the same kind, size and rated capacity, working under like conditions."

It appears that the tractor plow was shipped to Winnebago station, and was consigned by defendant to "order of Advance Rumely Co." Upon arrival at Winnebago, H. Mooney, an agent and tractor plow expert in defendant's employ, collected the purchase price and freight from plaintiff before the machine was tested. Subsequently it was unloaded from the car and prepared by him for a trial, and by him driven about two miles distant to the farm of C. C. Frum, plaintiff's prospective buyer. On September 16, 17, and 18, Mooney attempted to operate the plow, but it clearly appears that it failed to do the work for which it was intended and which it was warranted to do. When the field demonstration was closed plaintiff informed Mooney that the plow did not meet the warranty, and that, in view of his failure to make it work, he refused to accept it and demanded a return of his money. On September 25, 1917, and at subsequent intervals, plaintiff, by letter addressed to the Lincoln agency, repeated his complaint and again demanded repayment of the purchase price and freight. It also appears that Frum told Mooney to take the plow away from his farm because, as he says, he informed him that it was worthless. It seems though that, over Frum's protest, as he testified, "Mooney took the tractor around north of the corn-crib and left it." Apparently it has remained there ever since, though there is some evidence on the part of one of defendant's employees that, upon subsequent examination of the tractor, it appeared to him that it had been used to furnish power, apparently for some sort of a belt machine. On this point, however, the evidence conflicts.

It was shown that other tractor plows of substantially the same size and rated capacity, when working under substantially the same conditions as to soil and the like, did good work. One witness, who appears to be a practical tractor plowman, testified that the soil where defendant demonstrated its tractor plow was in normal condition, and that other plows of substantially the same sort "would pull three plows all over the Fisher land and do good plowing, under exactly the same conditions as existed at the time when the Rumely tractor was tried out on that land." To substantially the same effect is the evidence of three or more disinterested witnesses who were apparently conversant with the subject and qualified to testify. They testified that they had seen two or more tractor plows of different companies, but of the same general size and capacity as the tractor plow in question, doing good work under substantially the same conditions. On this point it may be said there is sufficient evidence to support the court's finding, which was, in effect, that the tractor plow in suit was not "capable of doing as good work as any other machine of the same kind, size and rated capacity, working under like conditions."

Defendant argues that because plaintiff did not return the tractor plow he cannot therefore recover for a breach of the warranty. It seems clear that the facts do not warrant the conclusion that, in legal effect, there was a delivery or an acceptance. Plaintiff was not obligated, under the facts, to accept the plow. It was consigned to defendant's order and, for all of the time material to the issues...