Dwinnell v. Boehmer

• Citation: 234 N.W. 655,60 N.D. 302
• Decision Date: 05 January 1931
• Docket Number: 5804
• Court: North Dakota Supreme Court

234 N.W. 655

60 N.D. 302

W. S. DWINNELL, Appellant, v. H. G. BOEHMER, Respondent

No. 5804

Supreme Court of North Dakota

January 5, 1931

Appeal from the District Court of Ramsey County, Buttz, J Action to foreclose a mortgage of personal property. From a judgment for the defendant, plaintiff appeals.

Affirmed.

Traynor & Traynor, for appellant.

"The Uniform Sales Act is not intended to be a restriction upon the rights of parties to contract. It is simply a statement of the rules applicable in the construction of such contracts as may be made." Minneapolis Threshing Mach. Co. v Hocking, 54 N.D. 559, 209 N.W. 996.

" . . the parties to a contract of sale may provide an exclusive remedy in case of breach of warranty. Minneapolis Steel & Machinery Co. v. Casey Land Agency, 51 N.D. 832, 201 N.W. 172; Clark Implement Co. v. Priebe (S.D.) 219 N.W. 473; Crouch & Son v. Leacke, 108 Ark. 322, 157 S.W. 390, 50 L.R.A.(N.S.) 774." Palaniuk v. Allis-Chalmers, 57 N.D. 199.

H. W. Swenson and Shepherd D. Wheat, for respondent.

An offer is not a contract and cannot become binding upon the offerer until accepted. Westby v. J.I. Case Threshing Mach. Co. 21 N.D. 575, 132 N.W. 137; Colean Mfg. Co. v. Blanchette, 16 N.D. 341, 115 N.W. 614. See also Hart-Parr Co. v. Finley, 31 N.D. 130, 153 N.W. 137; Black, Rescission & Cancellation, 2d ed. 1457, p. 1496; Sneve v. Schwartz, 25 N.D. 287, 141 N.W. 348.

Nuessle, J. Burr, Birdzell, and Burke, JJ., concur. Christianson, Ch. J. (dissenting).

OPINION

NUESSLE

Plaintiff sold a tractor to the defendant and took a mortgage on it for the unpaid portion of the purchase price. He seeks in this action to foreclose such mortgage. Defendant, resisting, claims the tractor was defective and valueless and alleges that there was no consideration for the payment made. He seeks a rescission of the contract of purchase; for a cancellation of his notes and mortgage; and for a return of that portion of the purchase price paid by him.

The facts as disclosed by the record may be skeletonized thus The plaintiff is engaged in the business of manufacturing and selling tractors under the name and style of the Gray Tractor Company. His place of business is at Minneapolis, Minnesota. The defendant is a farmer residing in Ramsey County, North Dakota. In the fall of 1928, plaintiff's salesman, one Storlie, talked to the defendant concerning the sale of a tractor and plow. The defendant was interested and finally he agreed to buy a rebuilt tractor and plow. Storlie produced and filled out a printed form of order and agreement used by the plaintiff in the sale of tractors, and the defendant agreed to the terms thereof and signed the same. Storlie then sent it forward to the plaintiff for his approval as Storlie had no authority to bind the plaintiff. As set out in this instrument the price of the tractor was $ 1250, and the plow $ 100. The defendant was to pay the freight. The purchase price was to be paid according to the terms of two notes: one for $ 675, due October 1, 1928; and one for $ 675, due October 1, 1929, such notes to be secured on the machinery. Among other things, this instrument provided:

"It is further agreed that this order and agreement is given and accepted and the sale and purchase of said tractor, fixtures and equipment are made upon the express condition that this order and agreement contains all the terms and conditions of sale and purchase of said tractor, fixtures and equipment and cannot in any manner be changed, altered or modified without the written consent of the officers of said Company. The Company shall not be responsible for any delay in shipping said tractor caused by accident, strikes or other unavoidable circumstances, and that this order and agreement is not to be binding upon the Company until approved by the said Company by a duly authorized representative thereof signing the same.

"I, (the purchaser) understand and agree that this order and the warranty printed below constitute the only conditions, either expressed or implied, upon which this order is placed, and also that the order shall not be binding on your Company until accepted by it in writing."

The warranty above referred to reads as follows:

"We, (the vendor) warrant each rebuilt tractor manufactured by us to be free from defects in material and workmanship under normal use and service, our obligation under this warranty being limited to making good at our factory any part or parts thereof which shall, within one year after delivery of such tractor to the original purchaser, be returned to us with transportation charges prepaid, and which our examination shall disclose to our satisfaction to have been thus defective; this warranty being expressly in lieu of all other warranties expressed or implied and of all other obligations or liabilities on our part, and we neither assume nor authorize any person to assume for us any other liability in connection with the sale of our tractor."

Storlie submitted this order to the plaintiff. Plaintiff, however, refused to accept it on the terms of payment as therein contained and advised Storlie that there would have to be a cash payment. Accordingly Storlie again interviewed the defendant, told him the plaintiff's requirements, and defendant, needing the tractor, agreed to pay $ 300 cash on delivery thereof. Thereupon Storlie endorsed the words "Cash, $ 300" across that portion of the contract devoted to the statement of the terms of payment. Storlie at once wired the plaintiff as to this change in the order and the plaintiff, satisfied therewith, shipped the tractor and plow. The machinery arrived at the defendant's railway station and defendant was notified. He went in, made a payment of $ 350 to cover the cash payment and freight, and executed the notes and mortgage aggregating $ 1050 pursuant to the terms of the amended order. The machinery was then unloaded. The defendant was not satisfied with the plow, saying that the beam was too light. Plaintiff, however, persuaded him to permit a demonstration. On September 17th or 18th the tractor and the plow were taken out to defendant's farm and operations were begun. The defendant refused to accept the plow and plaintiff agreed to take it back and give credit for the purchase price thereof on the notes. Defendant retained the tractor. In order that defendant might learn to operate it plaintiff's agents remained and helped him with it for three days. Then they departed. Defendant used the tractor for about fifteen days and seemed satisfied with it. He plowed in all 180 or 200 acres. Came settlement time and plaintiff demanded payment of the note then due. Defendant put him off for some time and finally, about the latter part of October, said that the tractor was defective in numerous respects. Plaintiff agreed to send a man with repairs to fix it the next spring when the weather was warmer but continued to demand payment of the past due note. It was not paid. Some correspondence took place between the parties. On February 14, 1929, defendant wrote plaintiff about the matter telling him of the defects to which he claimed the tractor was subject, and complaining generally about the transaction. On February 19, the plaintiff answered this letter saying that he was willing to meet the defendant more than half way and that all he wanted to know was that when he did his part the defendant would carry out his contract, and saying further: "Please write us that this is your intention and that you will let us know as soon as the weather is such that our man can work to advantage. Upon hearing from you we will make arrangements so that we can have any parts needed and our service man on the ground in time to get your tractor ready for the time to start your spring work." On February 23, the defendant wrote acknowledging the receipt of this letter and complaining further about the transaction. He also sent a statement as to the parts of the tractor that were defective and would require replacing. On March 15, plaintiff replied, answering the defendant's complaints. Among other things he wrote: "The quickest way for you to get your tractor in good running order is for you to make the payments as agreed and we will see that a service man calls on you at the first opportunity and assists you in putting your tractor in good shape. We believe that if you do your part this company will furnish the new parts up to a certain limit with no charge to you, but we feel sure they will do nothing of the kind until you carry out your part of this contract." Nothing further was done about the matter until May 14 when the instant action was begun. A warrant on foreclosure was then issued and the plaintiff caused the tractor to be seized under it. The tractor was thus taken and turned over to the plaintiff.

The case came to trial before the court without a jury. The court found for the defendant and ordered judgment in his favor cancelling the notes and mortgage and for the amount of the purchase price paid, together with interest from date of payment. Plaintiff appeals and demands a trial de novo.

A careful examination of the record convinces us that the findings of the trial court that the tractor was defective and not reasonably fit to suit the purposes for which it was purchased, is amply sustained by the evidence. We think it would be a fruitless use of time and space to...