Deere & Webber Co. v. Moch
| Decision Date | 17 April 1942 |
| Docket Number | 6826. |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. Parties to a written contract of sale may exclude and negative implied warranties arising and otherwise available under section 6002a15, 1925 Supp. to Comp. Laws.
2. Implied warranties are imposed by operation of law and unless specifically negatived or waived, become a part of the contract of sale by virtue of statute.
3. A provision in a conditional sales contract to the effect that no implied warranty shall limit or qualify "the terms of this contract" neither negatives nor waives implied warranties except as to the specific terms of the conditional sales contract and is not a bar to an action for damages for breach of implied warranties.
4. Evidence examined and it is held to sustain a verdict for damages for breach of warranty to the extent of $427.50.
Sullivans Fleck & Higgins, of Mandan, Robert Chesrown, of Linton and Morrison & Skaug, of Mobridge, S. D., for plaintiff-appellant.
Scott Cameron, of Bismarck, and Charles Coventry, of Linton, for defendant-respondent.
This action is brought by the plaintiff to recover possession of three items of farm machinery sold by the Farmers Company to the defendant. The property is described in a "sale contract" which constitutes the basis upon which the plaintiff claims a right to recover possession of the property. This contract, which was assigned to the plaintiff dated December 11, 1939, reads as follows:
for which I agree to pay the vendor, or his assigns, the sum of $2004.00, as follows:
The defendant filed an answer and counterclaim in which he denied default and alleges that he bought the machinery for farming purposes and that it was understood and agreed that this machinery was satisfactory and adapted for the use for which it was being sold; that it was in good working condition and would perform the functions expected, required and intended to be performed which were the usual functions of farm machinery of like character and design. The answer also alleges that the plow was utterly useless and worthless and that there was consequently a failure of consideration for the contract of which the plaintiff had full knowledge.
The defendant's counterclaim, after realleging most of the answer, claims damages for breach of warranty by reason of faulty construction and design and the failure of the machinery to perform the work for which it was intended.
The defendant also counterclaims for special damages by reason of the fact that he lost the use of 150 acres of farm land during the season of 1940, to his damage in the sum of $1,000. He claims further, special damages for loss of hired labor and gasoline expended in attempting to operate the defective machinery and for money and labor expended in hiring other machinery.
The defendant also claims damages for partial loss of crops raised upon land improperly prepared by the defective machinery. The trial court excluded evidence of damage based upon the last allegation.
The case was tried to a jury which returned the following verdict: "We the jury in the above entitled action find for the plaintiff for the possession of the property involved as security for the balance due on the purchase price, after allowing thereon the sum of 796.58 Dollars which we find to be the defendant's damages for breach of warranty."
After both parties rested the plaintiff made a motion for a directed verdict which was denied. Judgment was entered on the verdict. Within proper time the plaintiff made a motion for judgment notwithstanding the verdict or for a new trial. This motion was also denied. The plaintiff thereupon appealed to this court from the order denying the motion for judgment notwithstanding the verdict or for a new trial and from that portion of the judgment allowing the defendant the sum of $796.58, damages for breach of warranty. The plaintiff seeks a new trial or a judgment notwithstanding the verdict upon two major premises. They are that the trial court erred in refusing to recognize and give effect to the provisions in the contract regarding agreements or warranties and the insufficiency of the evidence to sustain the verdict and judgment.
The record discloses these facts. The defendant, his father and his brother, operate a large farm of about 1500 acres. On or about December 11, 1939, the defendant purchased a tractor, a plow and a disk harrow from the Farmers Company. This machinery was manufactured by the plaintiff. In the course of the transaction, the defendant traded in an old tractor and plow. The total purchase price was $2,004. After deducting an allowance for the old machinery and a cash payment of $100, there was left a balance of $1,106.29, for which the defendant executed two notes described in the sale contract which we have heretofore quoted. The tractor was used to grind some feed during the winter following the purchase. The plow, however, was not and could not be used until the following spring. The defendant makes no complaint concerning the tractor or the harrow. His only complaint is as to the operation of the plow. At the time the purchase was made, the discussions and representations were participated in by the manager of the Farmers Company and by one J. H. Engh, an employee of the plaintiff known as a block man. The defendant testified that "The new plow was supposed to have no clearance, and therefore take more trash, and in that respect it was supposed to be better than the other, and the stub beams could be replaced without taking out the beams."
In the spring, following the sale, the defendant tried out the plow for three days and was unable to make it work. He then complained to the manager of the Farmers Company. He used the plow part of the time until about three weeks later when Mr. Engh and another man came out to the defendant's farm and observed the plow in operation. The following day they came back again accompanied by the manager of the Farmers Company. About two weeks later, Mr. Strandland, the designer of the plow, came out to examine it. He was accompanied by the manager of the Farmers Company, his son, Mr. Engh and the sales manager of the Minneapolis Division of the Plaintiff company. After spending some time in operating the plow, according to the defendant's testimony, "they were satisfied that the plow wasn't working good enough to prepare a seed bottom, and Mr. Strandland agreed with me, that he would do the same, that is, he wouldn't use the plow." Sometime later, probably in July, another man brought out some new parts and tried them on the plow on two succeeding days. He did not leave these parts, however, but took them with him when he left. During all of this time the defendant repeatedly complained about the failure of the plow to operate properly. The defendant refused to pay more on the three items of machinery mentioned in the sales contract. The plaintiff brought this action and took possession of the machinery and still retains possession.
Both as a defense and as a basis for recovery upon his counterclaim the defendant relies upon the express warranty that the new plow was better than his old one that he traded in, and upon the warranties of quality and fitness which the law implies. The latter warranties are found in section 6002a15, 1925 Supp. to Comp.Laws, which provides that: "(1) Where the buyer, expressly...
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