First Nat. Bank of Cedar Rapids v. Erickson

• Decision Date: 06 January 1887
• Citation: 20 Neb. 580,31 N.W. 387
• Parties: FIRST NAT. BANK OF CEDAR RAPIDS v. ERICKSON.
• Court: Nebraska Supreme Court

20 Neb. 580

31 N.W. 387

FIRST NAT. BANK OF CEDAR RAPIDS

v.ERICKSON.

Supreme Court of Nebraska.

January 6, 1887.

Syllabus by the Court.

A defense was founded upon a certain printed warranty alleged to have been delivered to defendant by plaintiff's assignor at the time of the execution of the notes sued on. The execution and delivery of this warranty was denied by the plaintiff. Defendant testified, in substance, that the warranty was delivered to and received and relied upon by him as such. Held sufficient, prima facie, to permit the introduction of the instrument in evidence. The denial of the delivery of the warranty by plaintiff's witnesses presented a question of fact to be decided by the jury.

The delivery of a printed warranty of the quality of a harvester, with the name of the warrantor printed thereon as a signature, by an agent authorized to deliver the same, if delivered for and received as a warranty of the quality of a machine sold, being relied upon by the purchaser, to the knowledge of the seller, would be binding as such warranty, even though, upon the margin thereof, there is a condition printed that it shall be void unless countersigned by an agent, and no agent has countersigned it.

Evidence examined, and held sufficient to sustain a finding of breach of warranty, and of a waiver of the right to have return of the property within a specified time in case it did not give satisfaction.

Under the evidence, plaintiff held not to be an innocent purchaser of the notes upon which the suit was brought.

Error to district court, Lancaster county.

Harwood, Ames & Kelly, for plaintiff in error.

W. B. Baird, for defendant in error.

REESE, J.

This was an action on two promissory notes executed by defendant in error to the Williams Harvester Company, and by it transferred to plaintiff in error. The petition is in the usual form, and declares the plaintiff in the action to be a bona fide holder, having purchased the notes for value before maturity, etc. The answer admits the execution of the notes, and alleges that they were executed as and for a part of the purchase price of a Williams harvester and binder combined, and which said machine was sold to defendant upon a warranty in writing signed by the Williams Harvester Company. This warranty is set out in the answer, and is as follows:

“This machine is warranted to be of good material, and well made; and if a combined machine, and properly operated with two horses and a driver, will cut from ten to fifteen acres of grass or grain per day, and will do it as well as any other combined machine. If single, and properly operated with two horses and a driver, will cut as many acres of grass per day, and any kind of grass, as well as any single mower of equal capacity. If a harvester, and properly operated with two horses and a driver and two binders, will cut from ten to twelve acres per day as well as any other harvester of the same capacity. If a harvester and binder, and properly operated, it will draw as light, and cut and bind as much grain, and do it as well, as any other harvester and binder of equal capacity.

THE WILLIAMS HARVESTER CO.,

Cedar Rapids, Iowa.”

This warranty is all printed, including the signature. It is attached to a blank order for a machine. Between the two, and below the place designated for the signature of the purchaser, is the following: “ Remove this warranty, and give it to the purchaser. * * * Read this warranty, which we give with each machine sold. * * * Not valid unless countersigned by ______, agent.”

There are no other blanks for signatures, or otherwise, in connection with the warranty.

It is further alleged in the answer that another note had been executed and paid by defendant, the amount thereof being $104.50, and that defendant would not have made such payment “had not the said harvester company agreed to keep said warranty and agreement in all respects; and also, again, did the said harvester company make an additional warranty in writing * * * to put said machine--harvester and binder--in good shape before the harvest of 1883, by putting in a new knotter and movable binder, and put the machine in good order;” that as soon as defendant discovered that said machine and binder was not of good quality, and did not comply with said warranty, and agreements, he notified the agents of the harvester company, and offered to return said harvester and binder, and in the year 1883 he left it with said agents, who yet have it. It is alleged that the harvester and binder failed in all respects to perform as warranted; that it was not made of good material; and that the consideration of the notes had failed. Another allegation is that “plaintiff purchased said note in bad faith, and not in the ordinary course of business, and after the maturity of said notes, and well knew the defenses the defendant had to the same.”

The reply consists of a general denial. There was a jury trial, which resulted in a verdict and judgment in favor of defendant. Plaintiff alleges error.

The first question to which our attention should be given is the alleged error in the ruling of the trial court in the admission of the warranty referred to as evidence. The answer alleges that the machine was sold to defendant on the warranty, and defendant testified that it was delivered to him about the time of the sale, and before the execution of the notes, and that at the time he gave the notes he was asked by the person to...