Clark Implement Co. v. Priebe
| Decision Date | 19 May 1928 |
| Docket Number | 5856. |
| Citation | 219 N.W. 475,52 S.D. 606 |
| Parties | CLARK IMPLEMENT CO. v. PRIEBE. [*] |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Brule County; Frank B. Smith, Judge.
Action by the Clark Implement Company against W. J. Priebe. From the judgment and order denying a new trial, defendant appeals. Affirmed.
House & Eastman, of Chamberlain, for appellant.
Brown & Brown, of Chamberlain, for respondent.
This is an action for the foreclosure of a chattel mortgage on a tractor, in part payment of which notes secured thereby were given. Defendant admitted the execution of the notes and chattel mortgage, but alleged that said tractor was not as represented; that, at the time the tractor was delivered defendant discovered said defects and, upon discovery refused to take the tractor; that the agent of the company thereupon requested the defendant to take the tractor to defendant's farm, promising that plaintiff would send its expert to fix the tractor; that the plaintiff did send its expert to fix the tractor on several occasions, but that they were unable to place it in good working order; and that thereupon plaintiff repudiated its deal with defendant refused to have anything further to do with the tractor or to furnish repairs; and the defendant asked judgment that the note sued on be delivered up and canceled, and that defendant have judgment against the plaintiff for the amount paid by the defendant upon the contract price.
The order for the tractor signed, and a copy thereof kept, by defendant, recited that the tractor was purchased under the warranty printed on the back of said order. It warranted the tractor to be of good material, well made, and, with proper management, capable of doing as good work as similar articles of other manufacturers; that, if it should fail to fill such warranty, written notice should be given to the company that, if the defective machinery could not then be made to fill the warranty, it should be returned by the purchaser to the place where received and another furnished on the same terms of warranty, or money and notes to the amount represented by the defective machinery returned and no further claim made on the Clark Implement Company. The order for the tractor contained a provision that no promise of agent, employee, or attorney concerning the tractor, the working of or warranty thereon, should be binding upon the corporation unless made and ratified in writing by an executive officer at its home office, and any assistance rendered by any local agent or expert after the warranty had been waived or fulfilled should be deemed purely voluntary and should not operate as an extension or revival of said warranty.
The court found that defendant had executed said notes on May 6, 1921, together with another note for $1,000, secured by the said mortgage; that no warranty other than the written warranty hereinbefore stated was made by plaintiff in regard to the tractor; that the tractor was shipped to Chamberlain, where it was received by the defendant and taken by him to his farm 20 miles distant therefrom; that, soon after starting the engine at Chamberlain, defendant and Neary, the agent of the plaintiff, who was there present, found that it did not work well; and that Neary promised to send a man to fix it; that, a few days later, the man came, but thereafter the machine did not work satisfactorily, of which defendant advised Neary; that two weeks later the repairman again put in some new parts at defendant's request; that thereafter the machine failed to work satisfactorily, but defendant continued to use it for grading roads, putting in crops and threshing for himself and neighbors; and that he did not, at any time before the commencement of the action, offer to return it or notify plaintiff or any of its agents of any return or desire to return it. And the court concluded therefrom that the plaintiff was entitled to judgment for the amount of said notes and for the foreclosure of said mortgage, and judgment was entered accordingly.
Appellant contends that certain oral statements made by Neary prior to the signing of the written order, and certain statements in catalogues that defendant claims he had seen before signing the order, constituted an additional warranty. But section 860, Rev. Code, provides that:
"The execution of a contract in writing, *** supersedes all the oral negotiations or stipulations concerning its matter, which preceded or accompanied the execution of the instrument."
See, also, Farmers' Elevator Co. v. Swier (S. D.) 210 N.W. 671, 673; Midway, etc., Co. v. Foley (S. D.) 213 N.W. 507.
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