Flath v. Casselman

• Decision Date: 19 October 1901
• Citation: 87 N.W. 988,10 N.D. 419
• Court: North Dakota Supreme Court

87 N.W. 988

10 N.D. 419

GEORGE P. FLATH v. J. P. CASSELMAN

Supreme Court of North Dakota

October 19, 1901

Appeal from District Court, Grand Forks County; Fisk, J.

Action by George P. Flath against J. P. Casselman. Judgment for plaintiff. Defendant appeals. Affirmed.

Affirmed.

Bosard & Bosard, for appellant.

Tracy R. Bangs, for respondent.

OPINION

YOUNG J.

Action on two promissory notes executed and delivered by the defendant, Casselman, and one George Miller, as part payment for a Lambert gasoline threshing engine. Both notes are dated September 7, 1899. One is for $ 80, and is payable to the plaintiff. The other note is for $ 400, and is payable to the Lambert Gas & Gasoline Engine Company or order. The defense interposed is that the engine was sold under an express warranty; that there was a breach thereof, and rescission of the contract by the defendant. The trial was to a jury, and resulted in a verdict for plaintiff for the amount demanded in his complaint. A motion for a new trial was made by defendant. This was overruled, and judgment ordered and entered on the verdict for plaintiff. Defendant appeals from the judgment, and specifies as error the order of the trial court overruling his motion for a new trial.

The sole ground of the motion for new trial is the alleged insufficiency of the evidence to justify the verdict. The warranty upon which defendant relies to defeat a recovery is contained in the following allegations of his answer "The defendant alleges that the said plaintiff and one J. W. Lambert at the time of negotiating the sale of said engine to defendants made certain statements and representations, and guaranties in regard to said engine, as follows: That said engine would with one gallon of gasoline per horse power (that is, twelve gallons of gasoline per day), develop sufficient power to operate a certain separator which the plaintiff, who was the agent of the Peerless Threshing Machine Company, sold to the defendant at such time, and that, unless said engine would develop such sufficient power by consuming twelve gallons of gasoline per day, that the defendant could rescind said contract, and that said Lambert Gasoline Engine Company would return to him his notes." To sustain this defense, it was necessary for the defendant to establish (1) that there was an express warranty of the engine in the particulars alleged; (2) that the engine did not fulfill the requirements of such warranty; and (3) that the defendant notified the seller that the engine did not comply with the warranty. The position taken by the defendant in the trial court upon his motion for new trial was that all of the foregoing facts were established by uncontradicted evidence, and that is his contention on this appeal. If this contention is sustained, and the record discloses that the evidence is uncontradicted, as claimed, then it is patent that the order of the trial court refusing a new trial was erroneous. If, on the other hand, it shall appear that there is a substantial conflict in the evidence as to any facts material to the defense interposed, then the order overruling defendant's motion must be sustained; for the rule is well settled that this court will not weigh conflicting evidence, and that it will not disturb the order of a trial court granting or denying a new trial where there is a substantial conflict in the evidence. This is a rule of appellate tribunals generally. Magnusson v. Linwell, 9 N.D. 157, 82 N.W. 743; Howland v. Ink, 8 N.D. 63, 76 N.W. 992; Muri v. White, 8 N.D. 58, 76 N.W. 503; Bishop v. Railroad Co., 4 N.D. 536, 62 N.W. 605; Taylor v. Jones, 3 N.D. 235, 55 N.W. 593; Dickey v. Davis, 39 Cal. 565 at 569; Bank v. Wood, 124 Mo. 72, 27 S.W. 554; Hayne New Trial & App. § 288. See, also, 2 Enc. Pl. & Prac. 391, and cases cited. And it is not absolutely necessary to create a conflict in the testimony that the witnesses shall explicitly contradict one another. A conflict may be created by evidence tending to establish other facts which are inconsistent with the existence of the facts relied upon. Block v. Walker, 7 N.D. 414, 75 N.W. 787.

We will now turn to a consideration of the evidence, and in doing so we find it unnecessary to go beyond that relating to the alleged warranty of the engine. At the date of the transaction in question the plaintiff was the resident agent for the sale of Lambert gasoline engines, and had his office with J. E. Cooley and John Cooley, in the city of Grand Forks. The Cooleys were agents for the separator which was purchased by the defendant with the engine in question. The plaintiff fixed a price on the engine at which the agents for the separator were authorized to sell the same, and all preliminary negotiations for the sale to defendant were conducted by said agents. Neither the plaintiff, nor J. W. Lambert, by whom the alleged warranty is claimed to have been made, were personally connected with the sale prior to the day upon which the notes in suit were executed. The witnesses agree that the defendant did not purchase or agree to purchase the engine and separator until the notes were given; also that he took the same from the railroad station on September 1st to his farm for the purpose of trying the same pursuant to authority received from Ed Cooley. On this defendant, Casselman, testifies as follows: "Mr. Ed. Cooley stated to us that we could take that machine and run it for ten days if we wanted to. * * * When I took the engine from Northwood to the farm, I didn't say anything about buying. I took it there on trial. * * * There was no contract made with John Cooley or Ed. Cooley on that day. They told me to go out and take the machine and try it. After I hauled the machine to my farm, I had it in my possession merely for the purpose of trying it." Ed. Cooley testifies: "I told him he could go and take the machine and try it, and if it was satisfactory he could settle for it; he could have a trial of the machinery first. * * * He said he wouldn't give any order for the machine; that he would take the machine and try it, and if it was all right he would settle for it with his notes. * * * I never told him he could take the machine, and try it for ten days. I just gave him the figures. I wrote them down, and told him to go and take the machine and try it, and if it was satisfactory he could settle for it." There is no evidence in the record tending to contradict the facts...