Dowagiac Mfg. Co. v. Mahon
| Decision Date | 06 December 1904 |
| Citation | 101 N.W. 903,13 N.D. 516 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Pembina county; Kneeshaw, J.
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.
Order sustained.
W. J Burke and Scott Rex, for appellants.
If any one of three defenses alleged is good, demurrer should be overruled. Flint v. Dulany, 15 P. 208; Pryse v Bank, 48 S.W. 415; Lee v. Mehew, 56 P. 1046; Hill v. Walsh, 61 N.W. 440.
Pleading is good not only as to express warranties, but entitled the defendant to defend as breach of warranties implied by law. Hoe v. Sanborn, 21 N.Y. 552; Giffert v West, 37 Wis. 115. A contract is construed strictly against the party drawing it. Section 3912, Rev. Codes 1899; 17 Am. & Eng. Enc. Law 14; 9 Cyc. 590. The clause in question is not exclusive upon the subject of warranty, but is open to parol proof with the exception of the single feature, which the contract by a strict interpretation covers. Charter Gas Engine Co. v. Kellam, 79 N.Y.S. 1019.
No warranty will be implied where the parties have expressed in words the warranty by which they mean to be bound, but the rule does not extend to the exclusion of warranties implied by law where they are not excluded by the terms of the contract. Blackmore v. Fairbanks, Morse & Co., 79 Ia. 282; 44 N.W. 548; Bucy v. Pitts Agricultural Works, 56 N.W. 541; Merriam v. Field, 24 Wis 640; Giffert v. West, 37 Wis. 115; Alpha Check Rower Co. v. Bradley, 75 N.W. 369; Houston Cotton Oil Co. v. Trammel, 72 S.W. 244; Carleton v. Lombard Ayres & Co., 149 N.Y. 137, 43 N.E. 422.
The fact that there is a written contract or conveyance will not prevent proof of false representations before or at the time of executing the same. 14 Am. & Eng. Enc. Law 29; Jones on Evidence, section 440; 2 Pom. Eq. Jur. (2d Ed.) 896; Bigelow on Fraud, 175; Phelps v. James, 44 N.W. 543; Powelton Coal Co. v. McShain, 75 Pa. 238; Picard v. McCormick, 11 Mich. 68; Stanhope v. Swafford, 45 N.W. 403; Thomas v. Loose, 114 Pa. 35, 6 A. 326; Cullmans v. Lindsay, 6 A. 332; McCormick Harvesting Machine Co. v. Williams, 68 N.W. 907; Dowagiac Mfg. Co. v. Gibson, 35 N.W. 603; Griffith v. Strand, 54 P. 613; Nowlin v. Cain, 3 Allen, 261; Race v. Weston, 86 Ill. 91; Hoitt v.. Holcomb, 23 N.H. 535; Mayer v. Dean, 22 N.E. 261; 15 Am. & Eng. Enc. Law, 1251; Carleton v. Lombard, Ayres & Co., 149 N.Y. 137, 43 N.E. 422.
The complaint does not state a cause of action. Although the demurrer was interposed by respondent, it relates back and searches the record. Tribune Printing Co. v. Barnes, 7 N.D. 591, 75 N.W. 904; The Dowagiac Mfg. Co. v. White Rock Lumber & Hardware Co., 99 N.W. 854.
Newman, Spalding & Stambaugh, for respondents.
The execution of the contract superseded all the oral negotiations and stipulations concerning its matter, which preceded or accompanied the execution of the instrument. Section 3888, Rev. Codes; Blossom v. Griffin, 13 N.Y. 569; Baker v. Higgins, 21 N.Y. 397; Hutchinson v. Cleary, 3 N.D. 270, 55 N.W. 729; Northwestern Fuel Co. v. Burns, 1 N.D. 137, 45 N.W. 699; 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; Knudson v. Legion of Honor, 7 S.D. 214, 63 N.W. 911; Seitz v. Brewers Refrigerating Mach. Co., 141 U.S. 510, 12 S.Ct. 46; DeWitt v. Berry, 134 U.S. 306, 10 S.Ct. 538; Baldwin v. Van Deusen, 37 N.Y. 487.
To raise an implied warranty under a written contract of sale, the circumstances of the transaction raising such an implied warranty must appear from the written contract. It is claimed that the sale was by sample and, therefore, an implied warranty exists which can be shown by parol. Ottawa Bottle Co. v. Gunther, 31 F. 208; Whittemore v. South Boston Co., 2 Allen 52; 1 Am. & Eng. Enc. Law (1st Ed..) 110.
An express warranty of quality, excludes all implied warranties of quality. Reynolds v. Palmer, 21 F. 533; 10 Am. & Eng. Enc. Law (1st Ed.) 109; Baldwin v. Van Deusen, 37 N.Y. 487; DeWitt v. Berry, 134 U.S. 306; 33 L.Ed. 896; 10 S.Ct. 538; Lanier v. Auld, 3 Am. Dec. 680; 28 Am. & Eng. Enc. Law (1st Ed.) 742; International Pavement Co. v. Smith, 17 Mo.App. 264; Johnson v. Latimer, 71 Ga. 470; Cosgrove v. Bennett, 32 Minn. 371, 20 N.W. 359; Shepherd v. Gilroy, 46 Ia. 193; McGraw v. Fletcher, 35 Mich. 104.
The same transaction cannot be characterized as a warranty and as a fraud at the same time. Rose v. Hurley, 39 Ind. 81. Such issues cannot be tried in the same action. Graves v. Waite, 59 N.Y. 156; Ross v. Mather, 51 N.Y. 108. Representations of value and utility of machines and the like are mere matter of opinion. Neideder v. Castain, 36 Am. Rep. 198; Hunter v. McLaughlin, 43 Ind. 38; 1 Bigelow on Fraud, 479; Esterly Harvesting Machine Co. v. Berg, 71 N.W. 952.
Upon the proposition that the plaintiff could not elect to take the property under the title clause of the contract or sue for the price, the case of Dowagiac Mfg. Co. v. White Rock Lumber Co., 99 N.W. 854 (S.D.), stands alone. The authorities are uniform to the contrary. See Shepard v. Mills, 50 N.E. 709; Tanner & Delaney Co. v. Hall, 7 So. 187; Merchants & Planters Bank v. Thomas, 6 S.W. 565; Campbell Mfg. Co. v. Hickok, 21 A. 363; Alden v. Dyer, 99 N.W. 784; 6 Am. & Eng. Enc. Law (2d Ed.) 480.
Some cases hold vendor may sue for the contract price and hold title as security for the payment of the judgment. Fuller v. Brown, 60 N.W. 980; Prettyplace v. Groton Bridge & Mfg. Co., 61 N.W. 266; Perkins v. Grobben, 74 N.W. 469; Campbell Co. v. Rockaway Co., 29 A. 681; Brewer v. Ford, 7 N.Y.. Supp. 244.
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...
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