Gale Sulky Harrow Co. v. Laughlin

• Decision Date: 02 January 1891
• Citation: 31 Neb. 103,47 N.W. 638
• Parties: GALE SULKY HARROW CO. v. LAUGHLIN.
• Court: Nebraska Supreme Court

31 Neb. 103

47 N.W. 638

GALE SULKY HARROW CO.

v.LAUGHLIN.

Supreme Court of Nebraska.

Jan. 2, 1891.

Syllabus by the Court.

The declarations of an agent, made after the transaction to which they relate is fully completed and ended, are not competent to be given in evidence as a part of the res gestœ.

Error to district court, Cass county; APPELGET, Judge.C. A. Woosley and Byron Clark, for plaintiff in error.

Clark & Barr and Allen Beeson, for defendant in error.

COBB, C. J.

The plaintiff in error is a corporation organized under the laws of the state of Michigan, and on June 22, 1887, brought its action against the defendant in the district court of Cass county, alleging that, for a valuable consideration, he executed and delivered to the plaintiff his promissory note as follows: “$65. Cass Co., State of Nebraska, July 7, 1885. On or before the first day of January, 1887, I promise to pay Gale Sulky Harrow Manufacturing Company, or order, sixty-five dollars, at National Bank of Ashland, Nebraska, value received. If paid at maturity, interest at 7 per cent. from April 1, 1886, but, if not paid when due, interest at 7 per cent. per annum from date until paid. No promise or contract outside of this note will be recognized. E. G. LAUGHLIN.” Indorsed: “July 8, 1885. Dinner and feed, 75 cents,”--and no other payments or credits made thereon; and that there is due the principal sum, with interest from July 7, 1885, the payment of which by defendant has been demanded and refused.

The answer of the defendant admitted the execution of the note, and set up that it was given to the plaintiff's agent, one Pratt, for a combined farm machine, called the “Gale Sulky Harrow,” which the agent warranted to be a first-class implement, complete in all its details, and that it would accomplish satisfactory work under all circumstances, and was especially adapted to the cultivation of corn on foul land, corn-stalks and weeds being no obstruction to the successful work of the implement; and agreed then and there with defendant that any deviation therefrom would invalidate the sale, or, if it failed to give perfect satisfaction, the agent would deliver up the note and take away the implement, and thereby the plaintiff obtained and holds the note through false and fraudulent representations; the defendant alleging that the sulky harrow or agricultural implement for which the note was given would not, and never did, perform the work said agent represented it would, though defendant used his best efforts to make it work satisfactorily and answer the purposes warranted, and that it was wholly worthless and unfit as an agricultural implement for such purposes. That as soon as defendant had thoroughly tried the sulky harrow, and found it to be worthless, he at once informed the agent Pratt, and demanded the return of the note, and requested him to take the implement away, which he refused to do. Judgment was asked for the return of the note, and for costs.

The plaintiff's reply denied the allegations of warranty set up in the answer, and alleged that the Gale sulky harrow was sold on its merits, or on trial in the field, and due notice was given to defendant in the words of the note that “no promise or contract outside of this note will be recognized;” and further, that the agent had no authority to make any warrant or representation in regard to the work the implement would perform.

On April 24, 1888, there was a trial to a jury, which found for the defendant. The plaintiff's motion for a new trial was overruled, and judgment entered thereon, to which the plaintiff duly excepted, and assigns the following...