Colean Manufacturing Company, a Corp. v. Blanchett
| Decision Date | 15 October 1907 |
| Citation | 113 N.W. 614,16 N.D. 341 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Grand Forks county; Fisk, J.
Action by the Colean Manufacturing Company against Louis Blanchett. Judgment for defendant, and plaintiff appeals.
Affirmed.
Turner & Wright, for appellant.
Murphy & Duggan, for respondent.
MORGAN C. J. FISK, J., did not sit in this case; JOHN F. COWAN judge of the Second Judicial District, sitting by request.
This is an action to foreclose a chattel mortgage given to secure three promissory notes for an aggregate sum of $ 3,165. The answer sets up certain matters in defense and three separate counterclaims. Two of the counterclaims were disallowed by the trial court, and the defendant does not dispute the correctness of the refusal to allow them. The trial court dismissed the plaintiff's action and allowed a judgment upon one counterclaim for the value of a secondhand threshing rig which the defendant turned over to the plaintiff in part payment for the new threshing machine and attachments, for which the notes and mortgage in suit were given, which said second-hand threshing machine, it is claimed, was wrongfully converted to its own use by the plaintiff. The principal defense interposed by the defendant is that he did not make an absolute purchase of the new machine, but that it was delivered to him for trial only, and, if found on such trial not to do satisfactory work in all respects, then the machine was to be returned to plaintiff and the notes and mortgage to be returned to defendant. The trial court found for the defendant upon the principal issue raised by the answer, and gave judgment for the defendant for the sum of $ 948.76 on the counterclaim. The plaintiff appeals and requests a review of all the evidence on a trial de novo under section 7229, Rev. Codes 1905.
The pivotal facts in the record may be summarized as follows: On June 22, 1905, the defendant signed an order for the purchase of a threshing machine and attachments from the plaintiff. Under the provisions of the order, it was subject to approval by the plaintiff at its home office in Peoria Ill. The outfit was to be delivered to the defendant at Grand Forks on or about July 20th. This order for the machine provided for payment of freight by defendant, the giving of notes and mortgage by him for the purchase price, the turning over of the second-hand machine upon the delivery of the new machine, and the order contained a warranty that the new machine would do good work and the usual conditions to be complied with by defendant in case the machine did not fulfill the terms of the warranty. The evidence shows that the plaintiff was ready and willing to deliver the machine under the order, and that the order was in effect accepted by the plaintiff at the home office. The order negatives any contention that the machine was taken on the condition that it was to be tried before final acceptance. The order was an absolute order and contained no conditions except the conditions connected with the warranty provisions. Prior to the delivery of the new machine to the defendant, and prior to the delivery of the second-hand rig to the plaintiff, the defendant claims that a new contract was entered into between him and the plaintiff through its agents, being the same agents that had negotiated the contract evidenced by the order. This new contract was oral and provided for a sale on the same terms contained in the order, excepting that the defendant was to have the right to try the machine and return it if it did not do satisfactory work and as good work as like machines usually do. Defendant testifies that the notes and mortgages were signed on August 23d on this express condition, and that they were not to be delivered to plaintiff at all until after a satisfactory trial, but were to be placed in some bank in Grand Forks for final delivery to plaintiff or defendant, dependent upon the result of the trial. The defendant testified that this oral contract was made in the presence of two of plaintiff's agents, one of whom had died before the trial. The other agent testified positively that no new contract was entered into when the notes and mortgage were signed. The defendant also testifies that he was to have the right to test the machine before acceptance under the contract embodied in the order. He insists that the agent agreed to a trial when the order was signed, but the order did not contain any provision for a trial. Hence there is a square conflict between defendant and plaintiff on the main issue at the trial; one witness testifying positively the one way, and the other as positively the opposite. The trial court found that the defendant was entitled to belief. The plaintiff's witness is conclusively shown to have been mistaken as to other matters to which he testified in conflict with defendant, and defendant was thoroughly corroborated, as to such other matters; that is, whether the machine did good work or not. Although it is a difficult and embarrassing question of fact to determine, not having seen the witness while testifying, we are satisfied, however, that the defendant has told the truth and should be believed. The defendant was relying on a trial before acceptance of the machine, and insisted on it every time the plaintiff's agents approached him for a settlement; that is, the signing of the notes and mortgage. He was a man experienced in handling certain kinds of threshing machines, but was not familiar with those manufactured by the plaintiff. To insist on a trial under these circumstances would seem perfectly natural and reasonable. Under these circumstances, we have no hesitation in saying that the evidence sustains defendant's contention, thereby agreeing with the...
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