Emerson-Brantingham Implement Co. v. Miller

• Decision Date: 31 May 1932
• Docket Number: 12642.
• Citation: Emerson-Brantingham Implement Co. v. Miller, 91 Colo. 94, 12 P.2d 341 (Colo. 1932)
• Parties: EMERSON-BRANTINGHAM IMPLEMENT CO. v. MILLER et al.
• Court: Colorado Supreme Court

12 P.2d 341

91 Colo. 94

EMERSON-BRANTINGHAM IMPLEMENT CO. v. MILLER et al.

No. 12642.

Supreme Court of Colorado

May 31, 1932

In Department.

Error to District Court, City and County of Denver; George F Dunklee, Judge.

Action by the Emerson-Brantingham Implement Company against William Miller and others, wherein defendants filed a counterclaim. To review a judgment for defendants, plaintiff brings error.

Affirmed.

Frank L. Grant, of Denver, for plaintiff in error.

Philo B. Tolles and Thomas D. Cobbey, both of Denver, for defendants in error.

HILLIARD, J.

Plaintiff sued on promissory notes. Defendants admitted execution and delivery of the notes, but alleged that they evidenced part of purchase price of a certain tractor bought of plaintiff, a purchase induced by plaintiff through false representations of its agents as to the efficient usability of the tractor which representations defendants believed, and on which they relied; that the tractor was not as represented and warranted, and the representations of plaintiff in relation thereto were false, and that it was defective and could not be used. The defendants further answered that, because the tractor was of no value to them, the consideration failed and, counterclaiming, they sought to recover of plaintiff the sum of a note previously paid on the same account, $262.50 and other items. On issues joined the case was tried to a jury, which resolved against plaintiff, and, on defendants' counterclaim awarded $454.70, and in that sum judgment was entered.

There was testimony to the general effect that, in the spring of 1928, defendants, farmers, were in the market for a tractor for use on a large ranch; that March 16, 1928, having previously explained to plaintiff's agents the conditions under which a tractor would be of use to them, and being assured that the tractor which plaintiff manufactured and proffered to sell was suitable for their requirements and would work satisfactorily, defendants gave a written order for the tractor described, and agreed to pay therefor $1,070 that March 31, 1928, agreeably to the contract, they executed and delivered to plaintiff three notes, due, $260, May 15, 1928, $405, October 1, 1928, and $405, October 1, 1929; that April 6, 1928, the tractor was delivered at Denver, and immediatly taken by defendants to their ranch, where they endeavored to make use of it, but unsuccessfully; that pursuant to a provision of the contract of purchase defendants notified plaintiff of the defective machine, its apparent unsuitability and general failure to operate; that plaintiff made many efforts to remedy the defects and make the tractor work, but to no avail; that, while plaintiff was still engaged in its endeavors to remedy the defects, having the motor in its possession for that purpose, the first note became due, and whether it should then be paid was in dispute; that in the interest of receiving payment plaintiff made assurances of early repair and return of the tractor and of its successful operation, and, relying thereon, May 31, 1928, defendants paid the matured note; that the tractor was not returned until about the middle of June, shown to be late for preparation of ground for planting; that as Before the machine failed to work satisfactorily and was and continued to be of no use to defendants, who, finally despairing, notified plaintiff to take it, at the same time demanding return of their unpaid notes (sued on here). Plaintiff declined to consider retaking the tractor or to surrender defendants' notes. It further appeared that payment of the second note was formally extended, but such extension was entered into while plaintiff was still giving assurances that the tractor would be made to work effectively.

Points urged on review may be grouped as follows: (1) That the contract precluded recovery of damages; (2) that since defendants did not return the tractor to Denver, where they received it, their liability on the purchase notes continued; and (3) that by virtue of the written extension agreement of one of the notes in suit defendants are estopped to interpose any defense or counterclaim in the action.

1. The provision of the contract relied on as to this point reads 'It is hereby expressly agreed that all claims for damages against the company by reason of the nonperformance of the machinery above are hereby waived.' We have said of such agreements that 'courts are not disposed to construe contracts so as to work forfeiture of rights, except in very clear cases, and ...