Gas Traction Company, a Corp. v. Stenger
| Decision Date | 10 August 1916 |
| Court | North Dakota Supreme Court |
From a judgment of the District Court of Richland County, Allen, J defendant appeals.
Affirmed.
J. A Dwyer and Wolfe & Schneller, for appellant.
The whole contract is an example of rare ingenuity, and comes very near being inherently fraudulent on its face, and void as against public policy. The defendant was an unsuspecting purchaser. He relied upon what the agent said and read to him, and supposed that the instrument he signed contained just what the agent had read to him. This agent was a soliciting agent of the plaintiff, to get this application signed, and to make this sale, and he had undoubted authority and power to represent to defendant that what he read was just what the paper contained. Johnson v. Dakota F. & M Ins. Co. 1 N.D. 167, 45 N.W. 799.
It is the established law of this state that unless the paper expressly cuts off all warranties, it must be construed as applying solely and only to warranties by contract between the parties, and as not applying to warranties implied by law. Northwestern Cordage Co. v. Rice, 5 N.D. 432 57 Am. St. Rep. 563, 67 N.W. 298; Hooven & A. Co. v. Wirtz, 15 N.D. 477, 107 N.W. 1078.
Lawrence & Murphy, for respondents.
Justice is nothing more or less than conformity to some obligation law, and all human actions are either just or unjust as they are in conformity to or in opposition to law. Borden v. State, 11 Ark. 519, 54 Am. Dec. 217; Minnesota Thresher Mfg. Co. v. Lincoln, 4 N.D. 410, 61 N.W. 145.
Courts cannot annul or construe away an agreement otherwise legal, on the sole ground that in its enforcement it operates harshly in a given case which is presented for determination. Minnesota Thresher Mfg. Co. v. Lincoln, supra; Aultman & T. Machinery Co. v. Runck, 23 N.D. 579, 137 N.W. 831.
Defendant having elected to affirm the contract, he must now, after four years, abide by it. Sturtevant Mill Co. v. Kingsland Brick Co. 74 N.J.L. 492, 70 A. 732; Charter Gas & Engine Co. v. Barton, Ala. , 39 So. 985; Southwestern Portland Cement Co. v. O. D. Harvard Co. Tex. Civ. App. , 155 S.W. 656.
"Where the contract provides for a return of the goods if unsatisfactory, the buyer cannot relieve himself or liability for the price unless he returns or offers to return them, and the offer to return must be unconditional." Walsh Mfg. Co. v. Plymouth Lumber Co. 159 N.C. 507, 75 S.E. 718; Berlin Mach. Works v. Ewart Lumber Co. 184 Ala. 272, 63 So. 567; Slawson v. Albany R. Co. 3 Thomp. & C. 768, 1 Hun, 438; Dewey v. Erie, 14 Pa. 211, 53 Am. Dec. 533; International Filter Co. v. Cox Bottling Co. 89 Kan. 645, 132 P. 180; Darling v. Manistee, 166 Mich. 35, 131 N.W. 450; Gray v. Consolidated Ice Mach. Co. 103 Ga. 115, 29 S.E. 604; Fred W. Wolf Co. v. Northwestern Dairy Co. 55 Wash. 665, 104 P. 1123; Fred W. Wolf Co. v. Monarch Refrigerating Co. 252 Ill. 491, 50 L.R.A.(N.S.) 808, 96 N.E. 1063.
Defendant must comply with the terms of the contract, and he must establish the fact that he has done so, as a condition precedent to his right of recovery. He has failed to do so in this case, and he has no remedy in court for damages or otherwise. Allen v. Tompkins, 136 N.C. 208, 48 S.E. 655.
Defendant's conditions of the contract must have been performed by him, or any remedy he might have had for a breach is lost. Fetzer v. Haralson, Tex. Civ. App. , 147 S.W. 290.
"When a vendee of personal property has agreed that if there is a breach of warranty he will return the property, its return is the only condition on which he can rely on a broken warranty." Osborne v. Traylor, 8 Ky. L. Rep. 359; Chase Hackley Piano Co. v. Kennedy, 152 N.C. 197, 67 S.E. 488; Walsh Mfg. Co. v. Plymouth Lumber Co. 159 N.C. 507, 75 S.E. 718; W. F. Main Co. v. Griffin-Bynum Co. 141 N.C. 43, 53 S.E. 727; Minnesota Thresher Mfg. Co. v. Lincoln, 4 N.D. 424, 61 N.W. 145; Fahey v. Esterly Mach. Co. 3 N.D. 220, 44 Am. St. Rep. 554, 55 N.W. 580.
So, when the contract for the purchase of a threshing machine, under warranty, requires notice of defects to be given the company or vendor, and there has been failure on the part of the purchaser to claim any defects and failure to give notice within the time specified in the contract, or to return or offer to return the property, he has no standing in court to resist on any ground or breach of warranty, in an action for the purchase price. Gaar, S. & Co. v. Green, 6 N.D. 48, 68 N.W. 318; Aultman & T. Machinery Co. v. Wier, 67 Kan. 674, 74 P. 227; Seiberling v. Rodman, 14 Ind.App. 460, 43 N.E. 38; Minnesota Thresher Mfg. Co. v. Lincoln, 4 N.D. 410, 61 N.W. 145; McCormick Harvesting Mach. Co. v. Allison, 116 Ga. 445, 42 S.E. 778; Eichelroth v. Long, 156 Ill.App. 108; Hasenwinkle Grain Co. v. Dooley, 130 Ill.App. 75; Westbrook v. Reeves, 133 Iowa 655, 111 N.W. 11; Gaar, S. & Co. v. Hodges, 28 Ky. L. Rep. 889, 90 S.W. 580; Nichols-Shepard Co. v. Rhoadman, 112 Mo.App. 299, 87 S.W. 62; Heagney v. J. I. Case Threshing Mach. Co. 4 Neb. (Unof.) 745, 96 N.W. 175, rehearing in 4 Neb. (Unof.) 753, 99 N.W. 260; Rowell v. Oleson, 32 Minn. 288, 20 N.W. 227; Hinchcliffe v. Barwick, 49 L. J. Exch. N. S. 495, L. R. 5 Exch. Div. 177, 42 L. T. N. S. 492, 28 Week. Rep. 940, 44 J. P. 615; Mesnard v. Aldridge, 3 Esp. 271; Hamilton v. Northey Mfg. Co. 31 Ont. Rep. 468; King v. Towsley, 64 Iowa 75, 19 N.W. 859; Dunham v. Salmon, 130 Wis. 164, 109 N.W. 959; Sessions v. Hartsook, 23 Ark. 519; Kirk v. Seeley, 63 Mo.App. 262; J. I. Case Threshing Mach. Co. v. Hall, 32 Tex. Civ. App. 214, 73 S.W. 835; Walters v. Akers, 31 Ky. L. Rep. 259, 101 S.W. 1179; Wilson v. Nichols & S. Co. 139 Ky. 506, 97 S.W. 18; Haynes v. Plano Mfg. Co. 36 Tex. Civ. App. 567, 82 S.W. 532; Bomberger v. Griener, 18 Iowa 477; Himes v. Kiehl, 154 Pa. 190, 25 A. 632; F. C. Austin Mfg. Co. v. Clendenning, 21 Ind.App. 459, 52 N.E. 708; Davis v. Gosser, 41 Kan. 414, 21 P. 240; Hoover v. Doetsch, 45 Ill.App. 631; Birch v. Kavanaugh Knitting Co. 34 A.D. 614, 54 N.Y.S. 449, affirmed in 165 N.Y. 617, 59 N.E. 1119; Miller v. Nichols, 5 Neb. 478; James v. Bekkedahl, 10 N.D. 120, 86 N.W. 226; McCormick Harvesting Mach. Co. v. Arnold, 116 Ky. 508, 76 S.W. 323; Nichols & S. Co. v. Miller, 76 Neb. 809, 107 N.W. 1010; Williams v. Donaldson, 8 Iowa 108; Hills v. Bannister, 8 Cow. 31.
An express warranty excludes any implied warranty. The contract here provides: "It is mutually agreed that said engine, fixtures, and equipment are purchased upon the following warranty only."
This brings this case squarely within the rule laid down by our court. Dowagiac Mfg. Co. v. Mahon, 13 N.D. 522, 101 N.W. 903; Blackmore v. Fairbanks, M. & Co. 79 Iowa 282, 44 N.W. 548; Lynch v. Curfman, 65 Minn. 170, 68 N.W. 5; Wasatch Orchard Co. v. Morgan Canning Co. 32 Utah 229, 12 L.R.A.(N.S.) 540, 89 P. 1009; Bucy v. Pitts Agri. Works, 89 Iowa 464, 56 N.W. 541.
Defendant is limited to the express written agreement, and cannot rely upon any oral statements or assertions made to him, if any, by the experts or salesmen as to what plaintiff would do. Annis v. Burnham, 15 N.D. 577, 108 N.W. 549; Cughan v. Larson, 13 N.D. 373, 100 N.W. 1088; Foster v. Furlong, 8 N.D. 282, 78 N.W. 986; Dowagiac Mfg. Co. v. Mahon, 13 N.D. 516, 101 N.W. 903; Houghton Implement Co. v. Doughty, 14 N.D. 331, 104 N.W. 516; Western Electric Co. v. Baerthel, 127 Iowa 467, 103 N.W. 475; Apking v. Hoefer, 74 Neb. 325, 104 N.W. 177.
Misrepresentations render the contract of sale voidable only, but the party relying upon the fraud must act promptly in making his election, whether he would acquiesce in or repudiate the contract. If he fails to rescind the contract promptly, he will be bound by it to the same extent as though it was binding in the first instance. Annis v. Burnham, 15 N.D. 582, 108 N.W. 549; Sonnesyn v. Akin, 14 N.D. 248, 104 N.W. 1026; Chilson v. Houston, 9 N.D. 498, 84 N.W. 354.
Further, he affirms the contract by his acceptance of the fruits of the transaction, in the long and continued beneficial use of the machine, in plowing, harvesting, and threshing. 20 Cyc. 92; Kingman & Co. v. Stoddard, 29 C. C. A. 413, 57 U.S. App. 379, 85 F. 740; Grymes v. Sanders, 93 U.S. 55, 62, 23 L.Ed. 798, 801, 10 Mor. Min. Rep. 445; McLean v. Clapp, 141 U.S. 429, 35 L.Ed. 804, 12 S.Ct. 29; Fitzpatrick v. Flannagan, 106 U.S. 648, 27 L.Ed. 211, 1 S.Ct. 369.
Further, defendant voluntarily made payments. People v. Stephens, 71 N.Y. 527; Selway v. Fogg, 5 Mees. & W. 83, 151 Eng. Reprint, 36, 8 L. J. Exch. N. S. 199; Saratoga & S. R. Co. v. Row, 24 Wend. 74, 35 Am. Dec. 598; Parsons v. Hughes, 9 Paige, 592; Gilmer v. Ware, 19 Ala. 252; Thweatt v. McLeod, 56 Ala. 375; Doherty v. Bell, 55 Ind. 205; St. John v. Hendrickson, 81 Ind. 353; Whiting v. Hill, 23 Mich. 399, 6 Mor. Min. Rep. 692; Craig v. Bradley, 26 Mich. 369; Dailey v. King, 79 Mich. 568, 44 N.W. 959; McEacheran v. Western Transp. & Coal Co. 97 Mich. 479, 56 N.W. 860; Western Electric Co. v. Hart, 103 Mich. 477, 61 N.W. 867; Schmidt v. Mesmer, 116 Cal. 267, 48 P. 54; Thompson v. Libby, 36 Minn. 287, 31 N.W. 52; Morris v. Ewing, 8 N.D. 99, 76 N.W. 1047.
This is an action to foreclose a chattel mortgage given to secure three promissory notes. The complaint is in the usual form. The answer admits the execution and delivery of the notes and chattel mortgage, but alleges (both by way of answer and counterclaim) that the notes were executed and delivered by defendant to plaintiff in consideration of a certain "Big Four" traction engine; that defendant was induced to purchase said engine by reason of certain representations and warranties made to the defendant by the representatives of the plaintiff, and that said engine...
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