C. Aultman & Co. v. Stout

• Decision Date: 28 May 1884
• Citation: 19 N.W. 464,15 Neb. 586
• Parties: C. AULTMAN & CO., PLAINTIFF IN ERROR, v. I. M. STOUT, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

19 N.W. 464

15 Neb. 586

C. AULTMAN & CO., PLAINTIFF IN ERROR, v. I. M. STOUT, DEFENDANT IN ERROR

Supreme Court of Nebraska

May 28, 1884

ERROR to the district court for York county. Tried below before NORVAL, J.

REVERSED AND REMANDED.

Lamb Ricketts & Wilson, for plaintiff in error.

Sedgwick & Power, for defendant in error.

OPINION

COBB, CH. J.

This action was brought in the court below by the plaintiff in error, an incorporated company of the state of Ohio, against the defendant in error on two promissory notes, each for the payment of one hundred and thirty dollars with interest, on which plaintiff claimed that there was due and unpaid at the time of commencing the suit the sum of three hundred and eighty-five dollars.

The defendant by his answer admitted the execution and delivery of the two promissory notes in manner and form as alleged by the plaintiff in its petition; but alleged that at the time of the making and delivery of the said two notes the plaintiff sold and delivered to the defendant one threshing machine and horse power for the agreed price of six hundred and fifty dollars, and that defendant gave plaintiff his five promissory notes for said purchase price, all of said notes being negotiable notes for $ 130 each, and defendant also agreed to pay the freight on said machine and horse power that to induce the defendant to purchase said machine and power, and as part of said contract of sale, the said plaintiff agreed to furnish defendant a good, perfectly constructed threshing machine, made of good material, with a thirty-six inch cylinder, and a twelve-horse power, well constructed, and capable of furnishing sufficient power to run said threshing machine, and also warranted that said machine if properly managed would thresh one thousand bushels of wheat per day; that said defendant relied upon said warranty, etc.; that said machines were not nor either of them as warranted by the said plaintiff as aforesaid, but the machine so furnished by plaintiff was not a thirty inch cylinder, and was of poor material and construction, and was imperfectly and improperly made and constructed, and would not thresh one thousand bushels of wheat per day if properly arranged, but was absolutely worthless; that the said power so furnished was not a twelve-horse power, was not well constructed and of good material, and was not capable of furnishing sufficient power to run said threshing machine, and was of no value; that two of said notes for $ 130 each and interest thereon from the eighth day of September, 1877, negotiable in form, drawn to the order of the plaintiff and delivered to it, are now outstanding, and for which the said defendant is liable; that by reason of the failure of the said plaintiff to keep and perform its said contract and agreement, and by reason of the failure of said warranty and the failure of the said machine and power in the respect warranted the defendant has been damaged in a large amount; that defendant had taken large contracts for threshing, and was unable to fulfill said contracts by reason of the said failure of the said machine and power, and so lost large profits which he otherwise might have made; and that defendant has lost large quantities of grain, being unable to thresh and save the same by reason of the said failure of said machine and power; and that defendant expended a great amount of time and labor by himself and others in his employ in endeavoring to repair said machine and power, and in endeavoring to use the same etc.

There was a trial to a jury, with a verdict and judgment for defendant for five hundred dollars and costs.

It seems from the testimony as preserved in the bill of exceptions that the machine was sold and delivered to the defendant early in September, 1877. The evidence of warranty is of a very unsatisfactory character. It is impossible to say with any certainty whether the warranty was in writing on the form for orders prepared by the company, or was only verbal by Gandy, the local agent. But there is not a shadow of testimony that Gandy as local agent was authorized to bind the company by warranty.

It seems that from the first the machine failed to give satisfaction, and the defendant complained to the local agent soon after he took the machine to his farm. Defendant states in his testimony that he did not think that the machine would work before he took it home; but upon trying it, the principal difficulty seemed to be with the power--that the power was not sufficient to run the separator.

Afterwards it seems that one Aiken appeared on the scene, and promised to furnish a new twelve-horse power, and gave the defendant a writing to that effect. Yet defendant continued to run the machine at different places, but, as he says, with poor success during the season of 1877. In 1878, Gandy, the local agent, procured for defendant a new ten-horse power. According to Gandy's testimony, this new power was delivered to the defendant, and at the same time a deduction of fifty dollars was made on the price of the machine and credited on one of the notes, and that said new power and credit of fifty dollars was received by defendant in full of all claim for damages on account of the deficiencies in said machine. And defendant testifies that at the time of receiving said new power he gave up to Gandy the writing which he had received from Aiken. Defendant also testified that upon the receipt of the new power he went to work with it, and threshed for John Darling. In answer to the question, "How did it run?" he answered: "We didn't try to run it very hard because I...