Gaar, Scott & Co. v. Patterson

• Decision Date: 08 July 1896
• Citation: Gaar, Scott & Co. v. Patterson, 65 Minn. 449, 68 N.W. 69 (Minn. 1896)
• Parties: GAAR, SCOTT & CO. v PATTERSON ET AL.
• Court: Minnesota Supreme Court

65 Minn. 449

68 N.W. 69

GAAR, SCOTT & CO.vPATTERSON ET AL.

Supreme Court of Minnesota.

July 8, 1896.

(Syllabus by the Court.)

1. Several specifications of error relating to the rulings made on the trial of this action, which was brought upon promissory notes, the defense interposed being based upon a warranty of a threshing machine for which the notes were given, and a breach thereof, considered and disposed of.

2. Held, that the evidence was sufficient to sustain a finding that the machine in question was sold to defendants upon a verbal warranty, and that it was sufficient to support the verdict in defendants' favor for damages growing out of a breach of said warranty.

Appeal from district court, Murray county; Brown, Judge.

Action by Gaar, Scott & Co., a corporation, against William J. Patterson and others. There was a verdict for defendants, and from an order denying a new trial plaintiff appeals. Affirmed.

Jay Henry Long and John M. Rees, for appellant.

T. J. Knox and H. C. Grass, for respondents.

COLLINS, J.

This was an action upon three promissory notes executed and delivered by defendants in part payment for a steam threshing machine. The defense set up in the answer was a breach of warranty of the machine, with a large claim for damages said to have been caused by the breach. The verdict was for defendants in a sum exceeding $1,000, and plaintiff appeals from an order denying a new trial. From the evidence it appears that defendants ordered from the plaintiff corporation, through the agents of the latter at Luverne, Minn., a threshing machine of a certain description, to be loaded on the cars at Richmond, Ind., on or before July 25, 1893, and shipped to Luverne. This order, partly printed and partly written, was in the usual form of such instruments, containing the customary warranty, with certain conditions to be complied with by defendants should the machine fail to fulfill the warranty. It also contained a condition that it was not to be binding on plaintiff until accepted by it, and entered upon the books of the corporation. As part payment for the machine, defendants, when giving the order, turned over and delivered to plaintiff an old machine, at an agreed value, which the latter immediately sold and disposed of. About the time the new machine should have reached Luverne, defendants went there to receive it. It had not arrived, and while waiting, the latter claim, they were informed that plaintiff would not or could not furnish the machine ordered. It is their claim that it was then agreed that the contract evidenced by the order should be rescinded and abandoned, and that, upon the same terms as to price and dates of payment, defendants should take a machine then on its way to Luverne, and which reached there soon afterwards. It was also testified to by defendants that, in consideration of their agreement to take another machine, the plaintiff, through its agents, verbally warranted it to be made of good materials, and that it would do good and satisfactory work; and they further claimed that no conditions of the kind we have mentioned, as contained in the order, were imposed upon them, should the machine in question fail to comply with the terms of the verbal warranty. As might be expected, plaintiff contended that there was no rescission or abandonment of the written contract, but that in filling the order it was not strictly complied with; that, in some non-essential particulars, changes were made which were satisfactory to defendants, and that the machine delivered was upon the order, and upon no other contract; that there was no warranty of any kind, except that found in the order itself; and that the machine was delivered and the notes given in accordance and as a compliance with the provisions of the order, not otherwise. This question, then, was for the jury, and while, from the undisputed evidence, it would appear that there was no material difference between the machine ordered and the one received, there was testimony tending to support the defendants' contention that the contract embraced in the order was abandoned when plaintiff's agents informed defendants that their order would not or could not be filled in strict accordance with its terms. In passing, we may here say that there was no proof that plaintiff ever accepted the order, and if it depends on the instrument itself, introduced in evidence, it is quite clear that it was not accepted in form.

Counsel for plaintiff urge that if there was...