Dowagiac Mfg. Co. v. Mahon

• Decision Date: 06 December 1904
• Citation: 13 N.D. 516,101 N.W. 903
• Parties: DOWAGIAC MFG. CO. v. MAHON et al.
• Court: North Dakota Supreme Court

13 N.D. 516

101 N.W. 903

DOWAGIAC MFG. CO.

v.MAHON et al.

Supreme Court of North Dakota.

Dec. 6, 1904.

Syllabus by the Court.

1. A written warranty that “it is understood that the goods are warranted only against breakage caused by manifest defects in material,” etc., excludes all other warranties of quality, express or implied.

2. Under a written contract of sale of machinery, specifying the terms and conditions of the contract, a sale by sample cannot be shown.

3. An answer and counterclaim alleging that a written contract of sale of drills and disks provided that they were of proper pattern, and properly constructed to do the work intended for them in a certain locality where the vendees were engaged in business, which contract is alleged to have been entered into in reliance on such statements or representations fraudulently made, does not state a defense or counterclaim for fraud or deceit.

4. Section 4988, Rev. Codes 1899, prescribing the rule of damages upon failure to accept and pay for personal property, the title to which is not vested in the vendee, is not applicable as a rule of damages where the property has been delivered to the vendee. In the latter case the vendor may waive the provision as to title and elect to sue for the purchase price, and the bringing of an action for the purchase price is such a waiver.

Appeal from District Court, Pembina County; W. J. Kneeshaw, Judge.

Action by the Dowagiac Manufacturing Company against John Mahon and J. B. Robinson. From an order sustaining demurrer to the answer and counterclaim, defendants appeal. Affirmed.W. J. Burke and Scott Rex, for appellants. Newman, Spalding & Stambaugh, for respondent.

MORGAN, C. J.

The plaintiff brings this action to recover from the defendants the sum of $825.30, claimed to be due to it on account of disks and drills alleged to have been sold and delivered to the defendants under a written contract. This contract provided that plaintiff authorized the defendants “to sell the grain seeding machinery manufactured” by it, at Neche, N. D., and all territory tributary thereto. The plaintiff also therein agreed to appoint “no other agent for said territory.” Defendants therein agreed “to purchase of said Dowagiac Manufacturing Company grain drills and seeders of its manufacture to supply their entire trade, * * * at prices shown by printed list on reverse side of this contract.” The contract also provided for settlements on May 1st, by giving notes payable in November, and for discounts if paid before that time. The contract also contained the following stipulations: (1) “In all cases the title and ownership of goods covered by this contract shall remain and be vested in the party of the first part until sold by the party of the second part in regular course of business, or settled for as above, and all receipts arising from the sale of these goods shall belong exclusively and absolutely to the party of the first part until settlement is completed according to the terms of this contract.” (2) “It is understood the goods are warranted only against breakage caused by manifest defect in material for the year in which they are sold.” The defendant interposed an answer and a counterclaim for damages. The answer alleges: (1) That the machines were sold by sample, and that those furnished under the contract were not made according to the samples, and were faulty in construction, and not equal and like the samples as they were warranted to be. (2) That the machines were warranted to be merchantable. (3) That they were expressly warranted to be of “proper pattern and construction,” and “would properly and satisfactorily do the work for which they were intended in the territory tributary to Neche, N. D., * * * where it was contemplated they should sell the same.” The plaintiff demurred to the answer and counterclaim upon the grounds that the new matter pleaded in such answer and counterclaim does not state facts sufficient to constitute a defense or counterclaim. The trial court sustained the demurrer, and defendants appeal from the order sustaining the same.

The answer alleges as a defense: (1) Breach of express warranties; (2) breach of implied warranties; (3) fraudulent representations which induced defendants to enter into the contract, and damages resulting from such fraudulent representations. Judgment is also prayed for that the contract be declared rescinded on account of such fraudulent representations and total failure of consideration. Plaintiff contends that the defendants are entitled to claim only such warranty as is contained in the contract; that the parties have stipulated that no warranty is thereby given, except as to breakage caused by manifest defects in the materials; and that the use of the word “only” in the warranty necessarily excludes all other warranties. We agree with this contention. Giving the word “only” its ordinary meaning, and applying it in its restrictive sense, as qualifying the word to which it naturally belongs, the conclusion cannot be escaped that it restricts the meaning to be given to the verb “warranted.” Defendants claim that it limits the time during which the warranty shall apply to the year in which the drills were sold. If that be true, its use was unnecessary, as without it the warranty would be effective for that year only. Before the sentence can mean what is claimed for it by defendants, the word “only” must be transposed to another place. There is nothing to warrant such a change of place. Under the natural grammatical construction of the sentence, it limits the application of the word “warranted.” To construe it as limiting any other word would be a strained construction of the sentence. When read in its natural sense, the contract provides for a limited warranty of the goods sold. The contract having restricted the warranty intended to be made, all others that pertain to the same subject-matter are excluded. The written contract is controlling. Its terms cannot be now changed by the addition of other warranties relating to the quality of the goods. Rev. Codes 1899, § 3888; Hutchinson v. Cleary, 3 N. D. 270, 55 N. W. 729;Plano Mfg. Co. v. Root, 3 N. D. 165, 54 N. W. 924;Grand Forks Lumber Co. v. Tourtelot, 7 N. D. 587, 75 N. W. 901; Mechem on Sales, § 1254; Bank v. Prior, 10 N. D. 146, 86 N. W. 362;Bank v. Ruettell, 12 N. D. 519, 97 N. W. 853.

The defendants contend that they are entitled to the benefit of warranties implied by law, notwithstanding the contract contains an express warranty against breakage caused by defective materials. They insist that such warranties as the law implies in relation to the fitness of the machines for the purposes intended, that they were merchantable goods, and that they were the equal of the sample exhibited, are properly pleaded, and that they are entitled to the benefit of such warranties in this case. In the first place, the written contract of sale does not show that the sale was made from a sample exhibited. To permit defendants to now show that the contract was made with reference to a sample would be to vary the terms of a written contract, and this is not permissible in such cases. Wiener v. Whipple, 53 Wis. 298, 10 N. W. 433, 40 Am. Rep. 775. In the next place, all the implied warranties pleaded are excluded from the terms of the contract by its restrictive words. The goods were warranted only against breakage caused by manifest defects of materials. This clause limits the warranties to that one, and by its very terms excludes all others as to quality, whether express or implied. The law will not imply a warranty in favor of a party who has expressly...