Cretors v. Troyer

• Decision Date: 18 March 1933
• Docket Number: No. 6089.,6089.
• Citation: 63 N.D. 231,247 N.W. 558
• Parties: CRETORS v. TROYER.
• Court: North Dakota Supreme Court

63 N.D. 231

247 N.W. 558

CRETORS

v.TROYER.

No. 6089.

Supreme Court of North Dakota.

March 18, 1933.

Syllabus by the Court.

1. Under section 6002a15, 1925 Supplement (section 15, Uniform Sales Act), where the seller knows the particular purpose for which goods are required and purchased and the buyer relies upon the seller's judgment as to their suitability for that purpose, there is an implied warranty that they shall be reasonably fit therefor.

2. Where testimony subject to apparent objection is offered and received without objection and the witness is cross-examined and excused, the right to object to the admission of such testimony is thereby waived and no error can be predicated on the denial of a motion thereafter made to strike the same.

3. Where the question is as to whether a machine satisfied an implied warranty as to its suitability for a particular use and purpose, evidence, that another machine of the same kind and character but using different materials operated successfully, is not admissible.

4. Where, after a case has been reopened without objection for the taking of further testimony, a party objects to the introduction of evidence on the ground that he will have no opportunity to rebut the evidence thus adduced because his own witnesses are not and cannot then be present, there is no error in overruling the objection where he makes no application for a continuance or any showing as to what he would expect to prove by such witnesses and the court affords him a reasonable time within which to produce his rebutting evidence.

5. The record in the instant case is examined, and it is held, for reasons stated in the opinion, that the trial court's findings are sustained by the evidence therein.

Appeal from District Court, Pierce County; G. Grimson, Judge.

Action by C. Cretors, doing business under the firm name and style of C. Cretors & Company, against O. O. Troyer. From a judgment for defendant, plaintiff appeals.

Affirmed.Senn, Casey & Jongewaard, of Rugby, for appellant.

Harold B. Nelson, of Rugby, for respondent.

NUESSLE, Chief Justice.

The plaintiff manufactures and sells electric corn-popping machinery. The defendant operates a pool hall in Rugby and incidentally sells pop corn and confectionery. In August, 1928, plaintiff's traveler, Burr, solicited the defendant to buy a corn-popping machine. Burr was acquainted with the defendant's business and knew the use to which defendant intended to put the machine. Defendant bought. He paid $95 in cash and agreed to pay the remainder of the purchase price, $485, in deferred payments. He gave his note representing this indebtedness and entered into a conditional sales contract with the plaintiff. Plaintiff put this contract of record and delivered the machine. Defendant tried to use the machine, claimed it would not work, set it aside, and notified the plaintiff. Plaintiff sent Burr to Rugby to show the defendant how to operate the machine. Defendant, however, thereafter insisted that it did not work successfully, notified the plaintiff that he was rescinding the contract, and that he was holding the machine subject to the plaintiff's order.

Thereafter plaintiff began this action to recover the amount of the contract price remaining unpaid and to foreclose the conditional contract of sale. Defendant, answering and counterclaiming, resisted the foreclosure, alleged that the plaintiff knew of the defendant's business and of the use to which he wished to put the machine; that the machine was thus sold under an implied warranty of fitness; that it failed to comply with this warranty; that he had on that account rescinded the contract; demanded that the plaintiff take nothing by his action; and asked judgment for damages in the amount he had paid on the machine and that such judgment be made a lien upon the machine which was still in his possession.

The case was tried to the court without a jury. The court found in favor of the defendant that the allegations of the answer and counterclaim were in substance sustained by the evidence, and accordingly ordered judgment for the defendant that the plaintiff take nothing; that the defendant recover the amount of the down payment made by him; and that a lien be fixed on the machine and the machine be sold to satisfy such judgment and lien. Thereupon the plaintiff perfected this appeal and demanded a trial de novo in this court.

The plaintiff complains of the findings as made by the trial court and insists that the evidence is insufficient to sustain them. He further insists that the trial court erred in shutting out certain evidence offered by plaintiff and in receiving and considering evidence offered by the defendant touching the manner in which the machine worked and with respect to the representations made by plaintiff's agent Burr at the time of the sale.

The conditional contract of sale provides that the agent making the sale has no authority to make any representations which are not contained within the contract and that if any such are made they shall not be binding upon the plaintiff. This contract makes no representations as to character, quality, or fitness, and contains no warranties of the machine; but, on the other hand, it does not negative any implied warranties. It is conceded that the plaintiff's agent at the time the sale was made was acquainted with the defendant's business and knew that the defendant intended to use and operate the machine in his pool room. The defendant testified that he informed Burr he desired to use butter to season the popped corn; that Burr said that the machine would work successfully with butter. On the other hand, Burr testified that the advised the defendant the machine would not work successfully when butter was used, but that it was necessary to use a seasoning compound made principally from cocoanut oil. It further appears that at the time he bought the machine defendant ordered four tubs or one hundred pounds of this seasoning compound, which was shipped with the machine. The defendant further testified that he knew nothing about the machine and its operation and use except as he was informed by Burr himself or through the advertising matter that Burr gave him, and that defendant relied upon Burr for what he thus learned when he purchased the machine.

[1] The court found for the defendant with respect to these several contentions, and while the testimony, particularly with regard to the use of butter and what was said concerning it, is conflicting, nevertheless we think that the record sustains this finding. Accordingly, it is clear that the provisions of paragraph 1, section 6002a15, 1925 Supplement, are applicable. This section provides that: “Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies upon the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for that purpose.” See Allis-Chalmers Manufacturing Company v. Frank, 57 N. D. 295, 221 N. W. 75;Minneapolis Steel & Machinery Company v. Casey Land Agency, 51 N. D. 832,...