David Bradley & Company v. Basta

• Citation: 98 N.W. 697,71 Neb. 169
• Decision Date: 17 February 1904
• Docket Number: 13,403
• Parties: DAVID BRADLEY & COMPANY v. JOSEPH BASTA ET AL
• Court: Supreme Court of Nebraska

98 N.W. 697

71 Neb. 169

DAVID BRADLEY & COMPANY v. JOSEPH BASTA ET AL

No. 13,403

Supreme Court of Nebraska

February 17, 1904

ERROR to the district court for Colfax county: CONRAD HOLLENBECK JUDGE. Reversed.

REVERSED.

Flickinger Brothers, for plaintiff in error.

George H. Thomas, contra.

AMES C. HASTINGS and OLDHAM, CC., concur.

OPINION

AMES, C.

This is a proceeding in error to reverse a judgment rendered in behalf of the defendants. The action is to recover the purchase price of a gasoline engine sold and delivered upon a written contract. The contract is in the form of an order which was obtained by the solicitation of an agent of the plaintiff, and is signed by the purchasers alone. It calls for an engine of certain specified number of horse power, and contains specific warranties as to material, construction and capacity to develop the specified power, and stipulates that it shall not be modified, nor any promises of agent, employee or attorney, not contained therein, be effectual, unless "in writing and ratified by the Council Bluffs office," the plaintiff's principal place of business. The document appears upon its face to express the entire agreement of the parties and to be complete in all respects. It was sent to, and received and accepted by, the principal managers of the plaintiff company, who shipped and delivered the engine accordingly, but the defendants refused to pay for the same. The defendants, however, contend that the delivery was not complete, because the contract stipulates that they shall have opportunity to ascertain whether the engine is in compliance with the terms of the warranty, and that, upon the application of certain practical tests, it has been ascertained that it is not so. But the alleged warranties, of a breach of which they complain, are not contained in the written contract, but are averred to have been made orally by the agent of the plaintiff antecedently to and contemporaneously with the signing of the latter. Or, more accurately speaking, it is alleged that the agent represented to them that the engine would be capable of making a certain number of revolutions a minute, and of causing a certain number of revolutions a minute in a certain separator (threshing machine) belonging to them, and assured them that, if it should fall short of these representations in either respect, or of successfully and satisfactorily driving and operating the separator, the defendants should be under no obligation to receive or accept the engine, or to pay any sum for or on account of it, and that these statements and promises were the sole inducement to the defendants to execute and deliver the contract or order. It was further averred that it has been ascertained, by practical experiment and attempted use of the engine, that it is in a large degree...