D.M. Osborne & Co. v. Francis
| Decision Date | 25 November 1893 |
| Citation | 18 S.E. 591,38 W.Va. 312 |
| Parties | D. M. OSBORNE & CO. v. FRANCIS. |
| Court | West Virginia Supreme Court |
Submitted June 16, 1893.
Syllabus by the Court.
1. Defendant bought a harvesting machine called a "binder," upon the condition that if it did not work to his satisfaction be might return it. Held that his right to reject was absolute, and his reasons could not be investigated.
2. An erroneous instruction on a material point is presumed to be to the prejudice of the party appealing, against whom it is given, and will cause reversal, unless it clearly appears from the record that it was harmless.
Error to circuit court, Marshall county.
Action by D. M. Osborne & Co. against Samuel Francis. Plaintiff had judgment, and defendant brings error. Reversed.
D. B Evans, for plaintiff in error.
J. L Parkinson, for defendant in error.
This action was for $133.50, the price and value of one right-hand binder and 50 pounds Manilla binding twine, which plaintiffs claimed to have sold defendant. It was originally brought before a justice, where the defendant confessed judgment for $8.50 for the twine, which, together with the costs, he paid. On the 9th of January, 1891, the justice gave judgment against Francis for $125, the price of the binder. From this judgment the defendant appealed to the circuit court of Marshall county, where the case was tried before a jury, and a verdict found for plaintiff for $133.50. During the progress of the trial the court, on motion of plaintiff gave three instructions. To the giving of the one marked "No. 2" defendant objected, but the court overruled the objection, and defendant excepted. On motion of defendant the court then gave the jury three instructions, to which plaintiff objected, but the court overruled the objection, and gave the same, and plaintiff excepted. After the verdict the defendant moved the court to set the same aside, and grant him a new trial, because the verdict was not in accordance with the law and the evidence, and because the court erred in giving plaintiff's instruction No. 2 to the jury; but the court overruled the motion for new trial, and defendant excepted, and the court signed, sealed, and made part of the record the defendant's bills of exceptions, and also certified and made part of the record the instructions given and refused, and all the evidence in the cause. There are two points assigned as error: (1) That plaintiff's instruction No. 2 is erroneous; (2) that it is inconsistent with defendant's instructions, especially defendant's instruction No. 2. Plaintiff's instruction No. 1 is as follows: "The jury are instructed that if they believe from the evidence that the machine was sold on a guaranty, and that after a fair trial it did do the work as guarantied, then the verdict should be for the plaintiff." Plaintiff's instruction No. 2 is as follows: "If the jury believe from the evidence that the machine was to give satisfaction to the defendant, then it should be a fair and reasonable satisfaction, and not a whimsical or unreasonable satisfaction." This is the only one to which defendant objected. The instruction No. 2 given for defendant reads as follows: "The court instructs the jury that if they find from the evidence that the machine, the price of which is in question, was sold to the defendant with the understanding and agreement that if it did not give satisfaction to the defendant the seller would take it, then the defendant had a right to refuse to keep the machine if it did not in fact give him satisfaction, and the burden of proving that it did give him satisfaction is on the plaintiff." Now, the appellant must make it manifest from the record that the ruling complained of is wrong.
The first question is, what were the terms, the language, the words of the contract of sale? The parties, instead of committing it to writing, and thus giving us a stable and trustworthy memorial that could speak for itself, have seen fit to commit it to the uncertain, slippery memory of man as to the terms, the words used; for on some of the very words the meaning and scope of the contract in large part depends. For this we have to look to the evidence, what the parties said and did, the nature of the subject of sale, and the surrounding circumstances. There is no controversy that the cultivated land on defendant's farm was sidling, sloping some of it steep. He had an old reaper that did not bind. Whether a binder could be used on it safely, usefully, was in his mind doubtful, and up to that time unknown. The two agents of plaintiff who were together and made the sale were examined as witnesses on behalf of plaintiffs. The first one said defendant was to give for the binder his old reaper and $120; one-half payable in a year, and the balance in two years. On July 3, 1890, witness got a card from defendant, saying: and on the 18th of July, 1890, another card, saying, "Your reaper is here at your order." He told defendant that their machine would not go on a certain sloping field with the platform on the upper side without upsetting, but could not be upset with the platform in the lower side. He said that the machine was not sold on the condition that it was to give satisfaction, but defendant was to take the machine and try it, and, if it did not do its work well, it (the plaintiff) was to pay for hauling it out and back. The second agent, who helped to make the sale, and was present, and seemed to be principal agent, in answer to the question, "What was the cause of the upsetting?" said: On the question of giving defendant satisfaction he said: Defendant testified that it cut the grain off as nice as any machine and tied the grain, but told plaintiff's agents that it worried his horses too much. On the main item here involved--the terms of the contract--he testified that he was to haul out the machine, and if it gave him satisfaction he was to take it; if it did not, he was to haul it back, and plaintiff was to pay for hauling it out and back; and when plaintiff's agents came out to see him about it, after receiving the cards, he told them in substance that he did not intend to take the machine. They replied, "You will have to keep the machine, and pay for it." This was not denied. Another witness, and one not interested, as far as appears, who was present at the sale, examined for defendant, said, by the contract, defendant was not to take the machine if it did not give him satisfaction. The evidence, therefore, at least tended to show that kind of conditional sale called in the books a "sale on trial," or "a sale or return." See Benj. Sales, (Bennett's 6th Ed.) § 595 et seq. and notes; Id. p. 568, notes 10, 11, et seq.; 21 Amer. & Eng. Enc. Law, 647, 648, 714, cases cited; Tied. Sales, § 213 and cases; Machine Co. v. Smith, 50 Mich. 567, 15 N.W. 906; Seeley v. Welles, 120 Pa. St. 75, 13 A. 736; Gray v. Bank, (City Ct. N. Y.) 10 N.Y.S. 5. If it is a "sale on trial," it is said to be a sale on condition precedent to buy if satisfied; that is, the title does not pass until the condition prescribed is fully performed, although the possession is delivered; being rather a bailment with an option to buy than a sale. If it is a "sale or return" it is said to be a sale on condition subsequent; that is, the title passes with the possession, but to be divested if the condition is not performed and the property returned. Tied. Sales, § 214; 1 Whart. Cont.§ 590; Benj. Sales, (Bennett's 6th Ed.) § 595 et seq., Amer. notes, 569; 2 Add. Cont. top p. 53, (Abbott's Ed. notes 1883.) ...
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