Flatt v. D. M. Osborne & Co.

• Decision Date: 15 January 1885
• Citation: 22 N.W. 440,33 Minn. 98
• Parties: FLATT v D. M. OSBORNE & CO.
• Court: Minnesota Supreme Court

33 Minn. 98

22 N.W. 440

FLATTvD. M. OSBORNE & CO.

Supreme Court of Minnesota.

Filed January 15, 1885.

Appeal from an order of the district court, Freeborn county.

Lovely & Morgan, for respondent, John R. Flatt.

G. D. Emery, for appellant, D. M. Osborne & Co.

VANDERBURGH, J.

In July, 1878, the plaintiff purchased of an agent of defendants a harvesting-machine known as the “Osborne Self-binder,” which he alleges was accompanied with an oral warranty of its quality and capacity. The defendants were manufacturers, and the agent had control of the sale of their farm machinery for the vicinity. The making of such warranty is denied by the defendants, and they allege in their answer that the machine was purchased subject to a written warranty which is set out therein, and is similar to the one which was construed by this court in Tunell v. Osborne, 31 Minn. 344;S. C. 17 N. W. REP. 944. The plaintiff introduced without objection evidence tending to prove the alleged oral warranty. On the part of defendants, their agent testified that he sold the machine on trial, “and if it did not do good work, and he [plaintiff] was not satisfied with it, he could return it;” that he remembered of “making no other warranty-might possibly have shown him a printed warranty;” and he did not remember of giving him one; and there is no evidence in the case that the plaintiff received or had actual notice of such printed warranty. The witness was, however, permitted to state that it was the custom of all the machine companies he ever did business for (which he admitted were the defendants and one other company only) to sell machines subject to their own printed warranty. The printed warranty, as set out in the answer, was therefore admitted in evidence, in connection with the contract between the agent and the defendants, defining his powers, and authorizing him to sell their machines within certain territory, he agreeing to perform the duties required of them by the terms of such warranty in case of sales. There was no other evidence given tending to prove the general custom of dealers.

1. The defendants claim that they were bound by the terms of such printed warranty only, and insist that this testimony of the witness was competent and proper evidence, to be considered by the jury, of a general and universal custom among machine companies to sell with a published printed warranty, and they accordingly asked the court to instruct the jury in substance that if they so found, then the company was not liable upon oral warranties by agents in excess of their authority; and if the agent was acting under a contract which defined or limited his authority as an agent for special and particular purposes only, the plaintiff was bound thereby, and defendant was not liable upon a contract of his agent in excess of such authority. Such instructions were properly refused by the court. The evidence of the usage of two companies within the knowledge of the witness-how long continued it did not appear-was insufficient to support a finding by the jury of a general usage or custom binding on the plaintiff, in the absence of evidence of any actual knowledge on the subject by him. Winsor v. Dillaway, 4 Metc. 223;...