Comptograph Company, a Corp. v. Citizens Bank of Minot, a Corporation
| Decision Date | 16 November 1915 |
| Citation | 155 N.W. 680,32 N.D. 59 |
| Court | North Dakota Supreme Court |
Appeal from a judgment of the District Court of Ward County Leighton, J.
Plaintiff appeals.
Affirmed.
Garnett & Garnett (Cowan & Adamson and H. S. Blood, of counsel), for appellant.
The written contract contains the whole agreement of the parties. It so expressly provides. A warranty is an agreement. To hold that the statutory warranties apply to this sale would in effect create a new contract for the parties. Dowagiac Mfg. Co. v. Mahon, 13 N.D. 521, 101 N.W. 903.
There is no proof that plaintiff failed in any respect to carry out the contract. "Title passes to vendee when parties agree upon a present transfer and the thing itself is identified." N.D. Stat. § 4990; Nichols & S Co. v. Paulson, 6 N.D. 400, 71 N.W. 136; Witte Mfg. Co v. Reilly, 11 N.D. 203, 91 N.W. 42.
Even if the statutory warranties applied, there is no proof that any of them operated or were intended to operate as a condition. N.D. Stat. § 5435; Hull v. Caldwell, 3 S.D. 451, 54 N.W. 100.
Defendant, by using the second or substituted machine, affirmed the contract. The substitution was made under the contract. Fred W. Wolf Co. v. Monarch Refrigerator Co. 252 Ill. 491, 50 L.R.A.(N.S.) 808, 96 N.E. 1063; J. L. Owens Co. v. Doughty, 16 N.D. 13, 110 N.W. 78; International Soc. v. Hildreth, 11 N.D. 262, 91 N.W. 70.
If defendant ever had a right to rescind, it did not do so within a reasonable time. J. L. Owens Co. v. Doughty, 16 N.D. 10, 110 N.W. 78; Houghton Implement Co. v. Doughty, 14 N.D. 331, 104 N.W. 516; Bruce v. Davenport, 5 Abb. Pr. N. S. 185; Knuckolls v. Lea, 10 Humph. 577; Prickett v. McFadden, 8 Ill.App. 197; Wilson v. Fisher, 5 Houst. (Del.) 395; Foster v. Rowley, 110 Mich. 63, 67 N.W. 1077; Rosenfield v. Swenson, 45 Minn. 190, 47 N.W. 718; Houston v. Cook, 153 Pa. 43, 25 A. 622.
There was no unconditional rescission. Poirier Mfg. Co. v. Kitts, 18 N.D. 556, 120 N.W. 558.
Thompson & Wooledge, for respondent.
There was no contract as to the second machine. Defendant had no opportunity before the second machine arrived to inspect it, and the rule is that the use of a machine for purposes of inspection is not an acceptance. Noble v. Olympia Brew. Co. 64 Wash. 461, 36 L.R.A.(N.S.) 467, 117 P. 241; Gay Oil Co. v. Roach, 93 Ark. 454, 27 L.R.A.(N.S.) 914, 137 Am. St. Rep. 95, 125 S.W. 122; 35 Cyc. 433, 434, 439, 440.
There was no executed sale, and defendant rescinded. Comp. Laws 1913, § 5994; Hooven & A. Co. v. Wirtz Bros. 15 N.D. 477, 107 N.W. 1078; Gay Oil Co. v. Roach, 27 L.R.A.(N.S.) 914, note; Noble v. Olympia Brew. Co. 36 L.R.A.(N.S.) 467, note; 35 Cyc. 440.
There was no waiver of warranties. 35 Cyc. 433, 439; Merchants' & M. Sav. Bank v. Fraze, 9 Ind.App. 161, 53 Am. St. Rep. 341, 36 N.E. 378; Westby v. J. I. Case Threshing Mach. Co. 21 N.D. 575, 132 N.W. 137; Houghton Implement Co. v. Vavrosky, 15 N.D. 308, 109 N.W. 1024.
Delivery was conditional, and no title passed,--no completed sale. Colean Mfg. Co. v. Blanchett, 16 N.D. 341, 113 N.W. 614; Nichols & S. Co. v. Paulson, 6 N.D. 400, 71 N.W. 136.
Plaintiff brought this action to recover the purchase price of an adding machine which it is alleged defendant purchased from plaintiff. The material allegations of the complaint, aside from the allegation of corporate existence of the parties, are as follows: "That on or about the 21st day of November, 1910, the defendant purchased from the plaintiff a certain comptograph, complete with motor and stand, for the sum of four hundred sixty-seven and 20/100 ($ 467.20) dollars, under and by virtue of the agreement, hereunto attached marked exhibit 'A' and made a part hereof.
The defendant's answer admits the corporate existence of the parties, but denies all other matters in the complaint; and further asserts that the defendant purchased the adding machine under a written agreement in words and figures as follows:
Comptograph Company
Chicago, Ill.
The undersigned hereby orders from you, upon the conditions hereinafter stated, comptograph described as follows:--Comptograph now in our possession, which is hereby accepted, No. Model 3 A Pattern 16 Complete with motor and stand--Sixty seven no/100 dollars Paid on this contract .
Purchase price to be Four hundred sixty seven no/100 dollars.
Terms: Net Cash in sixty (60) days. Net will be allowed for payment in full of invoice within ten (10) days of date thereof.
The Comptograph Company hereby agrees to keep comptograph covered by this agreement in complete repair, under ordinary usage, for the term of one year from date of invoice.
This guaranty does not contemplate that the Comptograph Company is to pay express charges on the machine if sent in for repairs.
Upon the refusal or neglect of purchaser to pay any sum due under this contract when the same may be due and payable, the entire purchase price, less any actual cash payment thereon, shall then and there become due and payable, and said purchase price shall thereupon be considered due and payable to Comptograph Company as liquidated damages for and on account of the breach of this contract by the purchaser.
It is expressly agreed that this contract shall not be canceled, and that it covers all agreements between the parties hereto relative to this transaction, and that neither party shall be bound by any representation or promise made verbally by any person, and which is not herein embodied and set forth.
Dated at Minot, N.D., this 21 day of Nov. 1910.
On this 21 day of Nov., 1910, Comptograph Company hereby accepts and becomes a party to the above agreement and contract of sale.
Louis F. Dow & Co.
Its Agent.
The answer further alleges that the defendant thereafter endeavored to use said adding machine in good faith, but that the same was defective and would not work, but would become locked, and that after making many attempts to use said machine, the defendant notified the plaintiff many times of the defects therein. That the machine at the time of its purchase and delivery had latent defects which had not been disclosed to the defendant by plaintiff or by any person; such defects arising from the process of manufacturing; and that such latent defects were not discovered until after delivery and purchase of the machine; that the machine was manufactured by the plaintiff, and that it had been ordered and purchased for a particular purpose, to wit, for the purpose of an adding machine, and that it was not reasonably fit for such purpose and would not perform the purpose for which it was intended, all of which was unknown to the defendant at the time of the delivery and purchase. That the defendant gave the machine only ordinary usage, but that it would not work and became out of repair, and that defendant immediately notified plaintiff of such fact, but that plaintiff failed and neglected to keep said machine in repair as provided in the contract, for a period of one year, or for any length of time whatever. That thereafter, and on or about March 21, 1911, the plaintiff at his own instance, and without any request on the part of the defendant, forwarded to defendant another adding machine, and that said second machine was received by the defendant merely for examination and never accepted, and that defendant never ordered or requested plaintiff to forward or deliver the second machine. But that on attempting to use the second machine it was found that the same would not work and was not reasonably fit for the purpose of an adding machine, but had the same defects as the first machine, of which fact the plaintiff was notified; that the second machine was received about March 25, 1911, and returned July 17, 1911; that the first machine was returned about April 6, 1911, that both machines were returned in as good condition as they were received.
The cause was tried to the court without a jury, and the trial court made findings in favor of the defendant, and judgment was entered pursuant to such findings, and this appeal is from the judgment entered in favor of the defendant upon such findings. The only errors argued by appellant on this appeal and, hence, the only ones which will be considered, are the assignments which challenge the correctness of certain findings, as well as the conclusions of law drawn by the court from the facts found. The evidence shows that about six or ten days prior to November 21, 1911, one Cherry, a representative of the Louis F. Dow Company, the agent of the plaintiff in this action, left an adding machine with the defendant bank. Afterwards on November 21, 1911, he again called and the written order or agreement set forth in defendant's answer was executed. The machine furnished did not prove satisfactory, and the defendant refused to pay for it. And sometime prior to March 25, 1911 (the record does not disclose the exact date), Mr. Cherry again called on the defendant, and at that time requested that the machine furnished and purchased under the...
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