Frohreich v. Gammon

• Citation: 11 N.W. 88,28 Minn. 476
• Parties: Julius Frohreich v. Elijah H. Gammon and another
• Decision Date: 19 December 1881
• Court: Supreme Court of Minnesota (US)

11 N.W. 88

28 Minn. 476

Julius Frohreich v. Elijah H. Gammon and another

Supreme Court of Minnesota

December 19, 1881

Plaintiff brought this action in the district court for Mower county, stating his cause of action in his complaint as follows:

"That on or about the 20th of July A. D. 1878, at said county defendants, by their duly authorized agent, sold and delivered to the plaintiff one Marsh harvester for the agreed price of $ 315, which sum plaintiff then agreed to pay therefor. That at the time of and previous to said sale defendants represented and warranted said machine to be well made of good material, and that it would do good work -- as good as any other machine. That plaintiff believed and relied on said warranty, and the same was the only inducement for plaintiff to purchase said machine. That said representations and warranty were false and untrue; that said harvester was not well made of good material, and would not do good work and was of no value whatever for the purpose of cutting grain.

"That by reason of the failure of said machine to do good work, plaintiff has been greatly hindered and damaged in his farm work; has been put to great trouble and expense and loss of time in fruitless efforts to operate said machine; that his grain, by delay in cutting, was, during the year 1878, greatly damaged, and much of it lost.

"That plaintiff has sustained damage in the premises in the sum of $ 450, for which he demands judgment, with costs and disbursements of this action."

The defendants in their answer admitted the sale and delivery of the harvester, denied the making and the falsity of the representations alleged in the complaint; averred that any failure of the harvester to do good work was owing not to any fault or defect therein, but solely to the ignorance and inexperience of plaintiff, and his inability to manage the machine; denied that plaintiff had suffered any damage by reason of the failure of the machine to do good work; and averred that at the time of the sale and delivery of the harvester, the defendants, by their agent who made the sale, gave to the plaintiff a written warranty, signed by them, which contained all the representations and inducements held out by defendants to plaintiff to purchase the harvester, and that plaintiff bought the harvester and agreed to pay for it, relying solely and entirely on this warranty, which is as follows:

"Warranty and agreement. That it is well made of good material, and with proper management it is capable of doing good work. That the purchaser shall have one day to give it a fair trial, and, if it should not work well, written notice, stating wherein it fails, is to be given to the agent from whom it is received, and Gammon & Deering, Chicago, Ill., and reasonable time allowed to get it, and remedy the defects, if any, (the purchaser rendering necessary and friendly assistance,) when, if it cannot be made to do good work, it shall be returned to the place where received, free of charge, and the notes and money refunded. Continued possession of the machine shall be evidence of satisfaction."

At the trial, before Farmer, J., it appeared that the plaintiff on July 20, 1878, applied to one D. B. Smith, defendants' agent, at his office in Austin, Mower county, to purchase a harvester with a binder attached. Smith took him into the yard adjoining the office, where plaintiff saw a machine which had been put together and was standing in the yard, and the machine in question (which was boxed and not open to inspection) was thereupon loaded on plaintiff's wagon. They then went into the agent's office, where the plaintiff signed three notes for the price of the machine, and the agent gave him the written warranty above set forth. There was a conflict of evidence as to whether the purchase by plaintiff was completed in the yard and before the return to the office, and as to the representations made by the agent, and as to whether the agent read and explained the warranty to the plaintiff, who was not well versed in the English language, and also as to the quality and value of the machine, and its capacity to do good work. The plaintiff failed to show that he had complied with the conditions of the written warranty, or that he had paid any part of the notes given for the price. Under defendants' objection and exception the plaintiff was permitted to introduce evidence tending to prove damage to his crops by reason of the failure of the machine to do good work. The court refused defendants' requests to instruct the jury that the plaintiff cannot recover any special damages, for loss of his wheat or loss of his time; and cannot recover any damages other than the special damages he may have proved, because there is no evidence that he has paid any part of the price of the machine, the giving of notes not constituting a payment, in the absence of any agreement to that effect; to which refusals the defendants duly excepted. The jury returned a verdict of $ 400 for plaintiff; a new trial was refused, and the defendants appealed.

Order reversed.

E. G. Rogers and Rush B. Wheeler, for appellants, argued among other points that the action will not lie for general damages until plaintiff has first shown that he has paid for the machine. Aultman v. Jett, 42 Wis. 488; Aultman & Taylor Co. v. Hetherington, Id. 622; and that the plaintiff cannot recover special damages, because not properly pleaded.

Sherman Page, for respondent.

The items of special damage are distinctly and separately stated, and similar averments of special damages have been held sufficient. 2 Greenl. Ev. §§ 254, 256; Harrington v. St. Paul & S. C. R. Co., 17 Minn. 215; Allis v. Day, 14 Minn. 516; Bast v. Leonard, 15 Minn. 304; Lindholm v. City of St. Paul, 19 Minn. 245. Plaintiff was entitled to recover all the damage of which the breach of the contract of warranty was the efficient cause. Marsh v. Webber, 16 Minn. 418; Sherrod v. Langdon, 21 Iowa 518; Passinger v. Thorburn, 34 N.Y. 634; Milburn v. Belloni, 39 N.Y. 53.

This action can be maintained, and the full amount of damages, both general and special, recovered, whether the purchase price has been paid or not. Mandel v. Buttles, 21 Minn. 391; Douglass Axe Manuf'g Co. v. Gardner, 10 Cush. 88; Vincent v. Leland, 100 Mass. 432; Parks v. Morris Axe & Tool Co., 54 N.Y. 586; Houghton v. Carpenter, 40 Vt. 588; Mondel v. Steel, 8 Mees. & W. 858; Geiser Threshing Machine Co. v. Farmer, 27 Minn. 428.

OPINION

Berry, J.

This is an action for breach of a warranty alleged to have been made by defendants upon the sale of a Marsh harvester to the plaintiff.

1. The defendants alleged and insisted that the warranty was written; the plaintiff, that it was oral. Plaintiff claimed and introduced evidence to show that, after the making of the oral warranty, defendants' agent handed him a paper, which defendants contend was the only warranty; that the plaintiff could not read it, (as it was written in a language foreign to him,) but that the agent told him that it was the same as the oral warranty, and that this was not true. If the facts are as thus claimed by the plaintiff, it is certainly competent for him to show them, and thereupon to maintain an action for a breach of the oral warranty. If he is right, the written warranty is not the contract which the defendants, in fact, entered into. It is a simulated, not a genuine, repository of the agreement of the parties. The plaintiff's apparent acceptance, when the deception practised upon him is shown, goes for nothing. The holding of the court below to this effect was right.

2. In actions of this kind, the measure of damages is the difference between the value of the thing warranted, as it in fact was,...