C. Aultman & Co. v. Olson

• Decision Date: 01 February 1886
• Parties: C. AULTMAN & CO. <I>vs.</I> KNUD OLSON.
• Court: Minnesota Supreme Court

Page 450

34 Minn. 450

C. AULTMAN & CO. vs. KNUD OLSON.

Supreme Court of Minnesota.

February 1, 1886.

Plaintiff, a corporation, brought this action in the district court for Redwood county, upon two instruments, similar in form, one of which is as follows, viz.:

                                   "SPRINGFIELD, MINNESOTA, November 15, 1880
                

"On or before the first day of November, 1881, for value received in renewal of my note, No. 60,759, due November 1, 1879, I, or we, the undersigned, each as principals, of Willow Lake township, county of Brown, State of Minnesota, promise to pay to the order of C. Aultman & Co., (an incorporated company under the general laws of the State of Ohio,) of Canton, Ohio, eighty-one and 55-100 dollars, payable at the office of ______, with interest at the rate of ten per cent. per annum from date until maturity, and interest at the rate of ten per cent. per annum from maturity until paid. In consideration of the extension herewith given, I hereby acknowledge full satisfaction as to warranty, and release and relinquish forever all claims against C. Aultman & Co., arising out of the purchase from them of the machine for which the note of which this is a renewal given. P. O. Springfield, Brown County, State of Minnesota, resides 12 miles N. W. of P. O. KNUD OLSON. [Seal.]

                  "Witness. Geo. A. Clarke."
                

The answer alleges that these instruments were executed and delivered without consideration and through plaintiff's fraud, setting out the matters recited in the opinion.

The action was tried before Webber, J., and a jury, and defendant had a verdict. Plaintiff appeals from an order refusing a new trial.

Plaintiff's ninth request, referred to in the opinion, was as follows, viz.: "If you fail to find that the note was read to the defendant as having a condition that in case the plaintiff did not fix the machine the notes were not to be paid, you must find for the plaintiff."

P. A. Foster and M. M. Madigan, for appellant.

Baldwin & Ward and J. M. Thompson, for respondent.

BERRY, J.

This is an action upon two like instruments for the payment of money, called "notes." The defence is that they were given in renewal of others theretofore executed by defendant for part of the price of a harvester sold by plaintiff to defendant, with a false warranty of quality; that at the time they were executed it was agreed that defendant's rights on account of the alleged breach of warranty should remain unaffected, and further that a provision should be inserted in them to the effect that plaintiff should put the machine in good order and repair before the commencement of the harvest of 1881, otherwise they should be void; that, in violation of this agreement, the plaintiff's agent, who took the notes from defendant, fraudulently inserted therein a release of all claims on account of the warranty, and fraudulently omitted to insert therein the agreed provision as to putting the machine in good order and repair, with the condition that otherwise the notes should be void.

1. The plaintiff contends that there is no evidence of any warranty, and that, therefore, even if the release was inserted fraudulently and contrary to agreement, defendant can have suffered no prejudice, and hence its insertion is immaterial. There is, in our judgment, evidence reasonably tending to establish the alleged warranty, its breach, and the consequent damage. The testimony of the defendant to this effect is somewhat confused, but it is the testimony of one who appears to understand and speak our language imperfectly, and this fact the jury very sensibly took into consideration in deliberating upon their verdict. As to the plaintiff's position that the alleged agreement as to putting the machine in order simply provided for a penalty, and, if inserted in the notes, would only have put the case upon a footing analogous to that of Mason v. Callender, 2 Minn. 302, (350,) while it is apparent that he is mistaken, for the agreement clearly imposed a condition upon which the notes were to be void, it is to be observed that in this case, where the question is whether the agreement was fraudulently omitted from the notes or not, it is not important whether it provided for a penalty or for something else.

2. Whether plaintiff's agent had in fact authority to agree to the alleged provisions as to the matter of warranty, and as to the repair of the machine, is unimportant. The defendant having, so far as appears, acted in good faith, if plaintiff's agent has obtained the notes by practising a fraud upon him, whether under a true or false assumption of authority, the fraud taints the...