Citizens' Bank of Hutchinson v. Crane Creek Tp., 5773.
| Citation | 59 N.D. 604,231 N.W. 281 |
| Decision Date | 30 June 1930 |
| Docket Number | No. 5773.,5773. |
| Parties | CITIZENS' BANK OF HUTCHINSON, MINN., v. CRANE CREEK TP. |
| Court | United States State Supreme Court of North Dakota |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Where, in an action to recover the purchase price of a road grader, the defense is a breach of warranty, which, in substance, states that the machine was not constructed of good first-class material; that it would not do the work it was intended to do as warranted; that its several parts did continually become broken and could not be made to operate, and was on account of faulty construction and material entirely worthless-it is incumbent upon the defendant to prove by competent testimony that the machine was entirely worthless for the purpose for which it was intended, and for which it was purchased.
Appeal from District Court, Mountrail County; John C. Lowe, Judge.
Action by the Citizens' Bank of Hutchinson, Minn., against Crane Creek Township, Mountrail County, N. D. Judgment for defendant, and plaintiff appeals.
Reversed, and new trial ordered.
R. F. Rinker, of New Rockford, for appellant.
F. F. Wyckoff, of Stanley, for respondent.
This is an action to recover on warrants issued by the defendant township, in payment for a road grader.
As a defense, the answer alleges, that “the warrants were issued upon the representation that the road grader, and each and every part thereof, was constructed of first class material and was in all respects so constructed that it would if properly operated do the work intended for it to do in a good and first class manner; and it further agrees and warrants that the said machine company would place the same in a good and first class operating condition upon the roads of said defendant township; that said grader was not constructed of good or first class material; that it would not do the work that it was intended to do; that its several parts did continually become broken, could not be made to operate and was on the account of faulty construction and material entirely worthless.” It is the further contention of the defendant that there was a rescission of the contract, but we are of the opinion that rescission is not sufficiently alleged in the answer nor proven in the evidence, and that the only question involved is the question of warranty and the breach thereof.
On the 5th day of August 1920, the defendant gave to the plaintiff a written order for one Monarch Traction reversible machine, 12-foot blade, which order contained a warranty as follows:
“Warranty: The machine purchased on this blank is guaranteed to be made in a thorough, workmanlike manner throughout, from the best of material and to be in every particular as represented in the Printed Matter of the Chamberlain Road Machine Co.
Any and all parts or pieces which may be broken in ordinary road work through defective material or imperfect workmanship, are to be replaced during the year of purchase free of charge F. O. B. Hutchinson, Minnesota.
Further, to stand the strain of a traction engine in ordinary soil conditions.
To make new roads in baked clay, gumbo or prairie sod.
To make and repair roads in soil that can be handled by a plow.
To be simple and thoroughly constructed, on mechanical principles.
To cut off high, hard and grassy shoulders and bring same into the center.
To be a successful machine for cleaning out old and making new ditches.
To make one mile of good turnpike road in 10 hours' work. (Road 24 Feet wide from ditch to ditch.)
To make 3 to 5 miles of open ditch per day, according to condition of the ground, 24 inches deep and 3 to 5 feet wide.
To carry earth forward for short distances.
To level and true up rough and rutty roads.
To effect a saving of 50 to 200 per cent in the cost of building and repairing roads over the old methods. (Scrapers, Drags and Wheelers.)
Hutchinson, Minnesota.”
The grader was delivered the latter part of September, 1920. Mr. J. H. Chamberlain, secretary and treasurer of the Chamberlain Road Machine Company, the manufacturers, and Mr. C. H. Cady, its demonstrator, were present when there was a demonstration of the machine. It was operated on a stretch of road a mile long, and some time in the afternoon the large casting, known as a “circle,” to which the blade of the grader is attached,and which can be moved in a circle so as to change the position of the blade, was broken. Mr. Cady, the demonstrator, turned the blade from end to end and continued to work the grader that afternoon and a part of the next day. Chamberlain left on the evening of the first day, but before he left he assured the defendant that a new “circle” would be furnished and the machine would be put in first-class working order. After he left, Mr. Cady, the demonstrator, found a note in the tool box addressed to him, in Mr. Chamberlain's handwriting, telling him to be sure and get the money for the grader before he left.
There was, according to the testimony, a great deal of stone on this road, and two men were put to digging them out on knolls along the road where they were the thickest, but, according to the testimony, there were no more stones on this road than on the other roads in Crane Creek township. Mr. Chamberlain testified that the breaking of the “circle” was not caused by the stone, but by a defect in the casting. His testimony is as follows: ...
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United States Rubber Company v. Bauer
...745, 751; Schmitt v. Northern Improvement Co., N.D.1962, 115 N.W.2d 713, 718, or in breach of warranty, Citizens' Bank v. Crane Creek Tp., 1930, 59 N.D. 604, 610, 231 N.W. 281, 283. See Jessen v. Schuneman's, Inc., 1955, 246 Minn. 13, 16, 73 N.W.2d 786, 4. Of course a question of negligence......