Geiser Mfg. Co. v. Holzer

• Decision Date: 11 February 1910
• Citation: 110 Minn. 138,124 N.W. 827
• Parties: GEISER MFG. CO. v. HOLZER.
• Court: Minnesota Supreme Court

110 Minn. 138

124 N.W. 827

GEISER MFG. CO.

v.HOLZER.

Supreme Court of Minnesota.

Feb. 11, 1910.

Appeal from District Court, Scott County; P. W. Morrison, Judge.

Action by the Geiser Manufacturing Company against Charles Holzer. From an order granting a new trial, plaintiff appeals. Reversed.

Syllabus by the Court

Defendant ordered machinery of plaintiff, and agreed to execute notes therefor. Machinery purporting to be the kind ordered was delivered by plaintiff to defendant in the fall of 1905. Defendant's answer in the present action was verified in January, 1907. During the interim defendant has retained the articles delivered, and has neither paid for them, nor executed the agreed notes, and has never returned nor offered to return them, nor any part thereof. It is held that plaintiff is entitled to recover damages in the amount of the notes. Benton, Molyneaux & Morley, for appellant.

F. J. Loenard, for respondent.

JAGGARD, J.

Plaintiff and appellant company sued defendant and respondent for breach of contract caused by the failure of defendant to execute to plaintiff the notes in accordance with the contract. The goods were not paid for. Defendant had gone to plaintiff's place of business, tested a secondhand engine, selected that engine and appliances, and signed a written order to pay $500 in accordance with the notes described in the complaint, the last of which was to fall due on December 1, 1907. The order contained no warranty, unless the description of the engine constituted one.

Defendant insists that plaintiff cannot recover, because plaintiff did not deliver the goods contracted for, and defendant has neither received, accepted, nor used the goods. Defendant's answer, however, expressly admits that ‘said goods (described in the order) were shipped by said plaintiff to said defendant at Jordan, Minn., on or about the time mentioned in the complaint; * * * that upon receipt of said goods by said defendant he endeavored to use the same, but that they did not work and could not be used, of which fact plaintiff was given immediate notice.’ The testimony disclosed by the record shows that this was not a casual or indavertent admission, but was necessitated by the facts. It appears affirmatively that defendant has retained possession of the goods since the fall of 1905. The record does not disclose when the action was commenced, but it does appear that the answer was verified January 10, 1907. The contract provided, among other things, ‘that the machinery herein ordered is sold as secondhand machinery, and in consideration of the price at which sold it is to be paid for without offset; possession of the same for a period...