Gaar, Scott & Company v. Patterson

• Decision Date: 08 July 1896
• Docket Number: 10,047--(167)
• Citation: 68 N.W. 69,65 Minn. 449
• Parties: GAAR, SCOTT & COMPANY v. WILLIAM J. PATTERSON and Another
• Court: Minnesota Supreme Court

68 N.W. 69

65 Minn. 449

GAAR, SCOTT & COMPANY v. WILLIAM J. PATTERSON and Another

Nos. 10,047--(167)

Supreme Court of Minnesota

July 8, 1896

Appeal bye plaintiff from an order of the district court for Murray county, P. E. Brown, J., denying a motion for a new trial. Affirmed.

Order affirmed.

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

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

OPINION

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, Minnesota, a threshing machine of a certain description, to be loaded on the cars at Richmond, Indiana 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 It is their claim that it was then agreed that the contract evidenced by the order should be rescinded and abandoned, and that, upon the same terms as to price and dates of payment, defendants should take a machine then on its way to Luverne, which reached there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 nonessential 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 evidence to justify a finding that the contract contained in the written order was abandoned, and another machine purchased under a verbal warranty, it was incumbent upon defendants to notify plaintiff that the terms of the warranty were not fulfilled, and to offer to return the machine before a cause of action could arise for breach of the warranty. But, if the machine was purchased as claimed by defendants the verbal warranty was absolute. It was...