Fuller v. Fried

• Decision Date: 06 April 1929
• Docket Number: No. 5346.,5346.
• Parties: FULLER et al. v. FRIED et al.
• Court: North Dakota Supreme Court

57 N.D. 824

224 N.W. 668

FULLER et al.

v.FRIED et al.

No. 5346.

Supreme Court of North Dakota.

Aug. 6, 1928.

On Petition for Rehearing, April 6, 1929.

Syllabus by the Court.

The parol evidence rule is limited to the parties to the contract or writing and their privies, and does not apply to third persons unless they seek to enforce some right under the contract. In the instant case it is held, for reasons stated in the opinion, that a written order signed by the plaintiffs purporting to be a contract for the purchase of certain machinery between the plaintiffs and one M, does not preclude the plaintiffs from showing that they did not purchase the property from M under such written order, but purchased the same from the defendants under an oral contract; and that such oral contract contained certain warranties.

In order to effect a rescission the buyer of personal property who has received the goods from the seller must notify the seller within a reasonable time of his election to rescind, and he must return the goods, or offer to return them, to the seller in substantially as good condition as they were when he received them (section 69, chapter 202, Laws 1917).

Where a buyer serves notice of rescission and an offer to return the property, and thereafter continues to use the property as his own for a considerable period of time, he will be deemed to have waived the election to rescind and the effect of his notice will be nullified by the subsequent dealings with this property as his own.

Additional Syllabus by Editorial Staff.

On Petition for Rehearing.

Fact that purchasers of tractor and plows from machinery dealers ordered repairs directly from manufacturers, because of inability to get them promptly from dealers, did not as matter of law establish that contract for purchase of such tractor and plows was one between purchasers and manufacturers.

Though ordinarily an election of remedies, once made, is irrevocable, the very idea of an election presupposes that, at the time election was made, there actually did exist two or more inconsistent remedies.

Under Laws 1917, c. 202, § 69(2), providing that, when buyer has been granted one remedy for breach of warranty, he is precluded from invoking another, buyer claiming a remedy which he does not have is not thereby precluded from invoking thereafter a remedy which he does have.

Where buyer, on breach of warranty by seller, seeks to avail himself of the remedy of rescission, and such remedy no longer exists, buyer is not precluded from invoking the only existing remedies, based on theory of continued existence of contract.

Courts are vested with wide discretionary power in the matter of granting amendments to pleadings in the furtherance of justice.

Though amendment to pleading results in change of cause of action in a technical sense, it would constitute no valid objection, provided amendment was one which party otherwise should be permitted to make in furtherance of justice.

Buyer, bringing an action under Sales Act to recover purchase price, based on theory of rescission, may be permitted to amend, so as to allege and claim damages for breach of warranty.

Proposed amendment of complaint for rescission of contract for purchase of tractor and plows, so as to recover damages for breach of warranty, did not introduce a new cause of action as respected limitations, in that recovery as on rescission would constitute a bar to recovery for breach of warranty, or vice versa, and running of statute of limitations was arrested by commencement of action, as proposed amendment would in legal effect be a continuation of the original complaint (citing Words and Phrases, First and Second Series, “Cause of Action”).

Appellate court, in reversing decision and remanding cause for further proceedings, may direct court below to allow amendments of pleadings in accordance with authority of Const. §§ 22, 86, and Comp. Laws 1913, §§ 7844, 7845.

Appeal from District Court, Stutsman County; Jansonius, Judge.

Action by Ortentia Sarah Fuller and another, copartners as Fuller & Henderson, against Anton Fried and another, copartners as Anton Fried & Son, individually. From a judgment for plaintiffs, and an order denying their motion for judgment notwithstanding verdict or for a new trial, defendants appeal. Reversed and remanded.

Knauf & Knauf, of Jamestown, for appellants.

Aylmer & Aylmer and Carr & Rittgers, all of Jamestown, for respondents.

CHRISTIANSON, J.

This is an action brought by the buyer of a tractor outfit to recover the purchase price because of an alleged breach of warranty by the seller. The case was tried to a jury and resulted in a verdict in favor of the plaintiffs. Defendants moved for judgment notwithstanding the verdict or for a new trial. The motion was denied, and the defendants have appealed from the judgment and from the order denying such motion.

The plaintiffs own and operate a large farm in Stutsman county in this state. The defendants are machinery dealers having, among others, a place of business at Spiritwood in Stutsman county. The evidence shows that some discussion was had between J. F. Henderson, representative of the plaintiffs and manager of their farm, and Fred Fried, a member of the defendant firm, with respect to the purchase by the plaintiffs of a tractor and plows, with the result that on May 3, 1919, Henderson signed a written order wherein the plaintiffs ordered the following machinery:

“One Twin City 16-30 H. P. Oil Tractor, 4 Bottom Emerson Engine Gang Complete with Extra shears 3-14 inch breaking Bottoms and Extra shears, Steering Device, Extension Rims, and 4 Bottom Packers,”

-and agreed to pay therefor $2,650 F. O. B. cars, the Minneapolis Steel & Machinery Company's plant at Minneapolis, Minn. The written order was upon a printed blank prepared by the Minneapolis Steel & Machinery Company and intended for use in ordering machinery from that company.

The first question presented on this appeal relates to such written order. It is undisputed that the order was signed by the authorized representative of the plaintiffs; but it is denied that such order constituted the contract between the parties. Henderson, the representative of the plaintiffs, testified that when the order was presented to him he refused to sign it, saying that he would not buy the machinery from the Minneapolis Steel & Machinery Company; that whatever purchase he made he would make from the defendants, Anton Fried & Son; that he was then informed by Fred Fried that the order was used merely as a memorandum giving a description of the machinery purchased and the price to be paid and was intended for no other purpose whatsoever; that Fried & Son did not have an order blank of their own, and that consequently they used this blank as a memorandum of the machinery purchased and the price to be paid therefor. The defendant, Fred Fried, on the other hand, testified that no such conversation took place; that the order was taken without any such understanding, and that it embodied the contract between the plaintiffs, as the buyers, and the Minneapolis Steel & Machinery Company, as the sellers, and that Anton Fried & Son acted merely as agents of the latter in obtaining and forwarding the order.

A large number of the assignments of error are directed at the rulings of the court in admitting the evidence offered by the plaintiffs tending to show that the written order was not in fact a contract of purchase; that the plaintiffs had never contracted with the Minneapolis Steel & Machinery Company; that they had contracted alone with Anton Fried & Son; and that the signature of the plaintiffs had been affixed to the contract in the circumstances stated, and with the understanding and belief on their part that it was not a contract at all, and that it merely contained a description of the machinery and the price to be paid; that the plaintiffs had no intention, no desire, and no willingness to enter into a contract with the Minneapolis Steel & Machinery Company, and would not have so contracted. This evidence was objected to by the defendants on the ground that it tended to vary, change, and contradict the written instrument, and error is assigned upon the rulings of the court, overruling such objections.

[1] We are wholly agreed that no error was committed in such rulings. The evidence in question did not seek to contradict, vary, or change the terms of a written contract. It went to the very existence of a contract between the plaintiffs and the defendants, and was offered and received upon the question whether the alleged written contract between the plaintiffs and the Minneapolis Steel & Machinery Company did or did not exist as the only contract. The plaintiffs did not rely upon or seek to recover under the written contract. They denied that the alleged written contract had any legal existence whatsoever. The plaintiffs claimed, and the evidence adduced in their behalf tended to show, that they had no intention to enter into a contract with the Minneapolis Steel & Machinery Company, and that they never did enter into any such contract; in short, that there was no meeting of the minds of the parties to such alleged contract at all. The Minneapolis Steel & Machinery Company was not a party to the action, and the defendant firm was not a party to the alleged written contract. In these circumstances the rule “excluding parol evidence tending to vary, modify, or contradict the writing” does not apply. 3 Jones Commentaries on Evidence (2d Ed.) § 1488. See, also, 2 Williston on Contracts, § 647.

We are of the opinion, therefore, that the court was entirely correct in admitting the evidence adduced by the plaintiffs tending to show that the alleged written contract was not in fact a legal contract; that plaintiffs did not purchase the machinery from the Minneapolis Steel & Machinery Company under such contract, but purchased the same from the defendants under another and oral...