Fitzpatrick v. D. M. Osborne & Co.
| Decision Date | 22 June 1892 |
| Citation | 52 N.W. 861,50 Minn. 261 |
| Parties | James Fitzpatrick v. D. M. Osborne & Co |
| Court | Minnesota Supreme Court |
June 7 1892, Submitted on Brief by Appellant, Argued by Respondent
Appeal by defendant, D. M. Osborne & Co., a corporation, from an order of the District Court of Murray County, P. E. Brown J., made October 1, 1891, denying its motion for a new trial.
In July, 1885, defendant delivered to plaintiff James Fitzpatrick a binder on trial. After testing it, plaintiff claimed it did not work properly. It was then agreed between the parties that plaintiff should purchase the machine and give his negotiable notes for it, and that defendant should repair it, and fix it so that it would do good work the next season. If defendant failed to do so, plaintiff need not keep the machine or pay the notes. Defendant failed to repair the machine or fix it so that it would do good work, but plaintiff has retained possession of it. He brings this action to recover damages for the failure of defendant to perform its contract. The answer was a general denial.
The action was noticed for trial at April Term, 1891. On the first day of the term defendant moved for a continuance on account of the absence of T. C. McDermott, who was defendant's agent, and resided at Mankato, and who was at home in attendance upon his sick wife. It was stated that he would testify that plaintiff told him he had settled the matter with defendant. The court refused the continuance because there was in the answer no allegation of payment or of settlement, and it appeared that the deposition of the witness might have been taken. On the trial plaintiff had a verdict for $ 122.59. Defendant moved for a new trial, and being denied, appealed.
Order affirmed.
Geo. W Wilson, for appellant.
H. C Grass, for respondent.
There was clearly no error in refusing defendants' application for a continuance. The plaintiff first took the harvester on trial. It proved defective, and would not do good work, and plaintiff refused to purchase it. Thereupon, in consideration of an undertaking of defendants that they would repair and fix it so that it would do good work the next season, the plaintiff bought it, and gave his negotiable promissory notes for the purchase price.
This undertaking on part of the defendants was what may be termed an "express promissory warranty" against the consequences of the then known defects in the machine. It constituted a part of the main contract, (of sale,) but was collateral to it.
For a breach of it, as of any other warranty, the plaintiff had his right of action, and might recover damages, although he had not paid the purchase price of the property. Frohreich v. Gammon, 28 Minn. 476, (11 N.W. 88;) Thoreson v. Minneapolis Harvester Works, 29 Minn. 341, (13 N.W. 156;) Schurmeier v. English, 46 Minn. 306, (48 N.W. 1112.)
The measure of damages in such a case is the difference between the value of the article as it was and what its value would have been if as warranted, or, in other words, what it...
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