Hale v. Van Buren, Heck & Marvin Co.

• Decision Date: 13 May 1909
• Docket Number: Case Number: 60
• Citation: 103 P. 1026,24 Okla. 13,1909 OK 135
• Parties: HALE et al. v. VAN BUREN, HECK & MARVIN CO.
• Court: Oklahoma Supreme Court

1909 OK 135

103 P. 1026

24 Okla. 13

HALE et al. v. VAN BUREN, HECK & MARVIN CO.

Case Number: 60

Supreme Court of Oklahoma

Decided: May 13, 1909

Syllabus

¶1 PRINCIPAL AND AGENT--Sales--Machinery--Warranty--Breach--Notice--Authority of Agent--Question for Jury. The contract provided that the ditcher was to be constructed and warranted in compliance with letter of August 27th to S., and letter of September 7th to H., and also in a subsequent clause therein it was provided that "the machinery furnished under the above order shall be made of good material, well constructed, and with proper use and management will do more and better work than any machine of its class; if inside of six days from the day of its first use it shall fail in any respect to fill this warranty, written notice shall be given by the purchaser to the V. B., H. & M. Company, at its home office, Findlay, Ohio, by registered letter, * * * stating particularly what parts and wherein it fails to fill the warranty. * * * Local agents and salesmen have no general agency powers. * * * Mechanical experts are not agents and have no authority to bind the company by any contract or statement whatever or to vary any terms or waive any condition of any contract except they bear written order from the manager." S., a mechanical expert, was sent by the V. B., H. & M. Company under instructions from the home office to install said machine. As to said machine he was authorized to make settlements, including the making of allowances or deductions for counterclaims on account of all the fixtures not being sent, to do the mechanical work, and receive money under said contract, receive notices, or any notice of defect or breakage in the machine whilst he was present installing or operating the same, and, if on examination he discovered any defects, he was to repair or make the same right. After he had left the place where the said machine was located, he had no authority from the V. B., H. & M. Company to receive any notice from the vendee as to any defects in the machinery. After he had set up or installed said machine, within four or five days after, he left Lawton, the place where the machine was installed. On being notified by the vendee by letter that the machine was not working as per contract, he advised said vendee that he was working under the instructions of V. B., H. & M. Company, and afterwards, under instructions from said company, he returned to Lawton and re-examined and again repaired said machine. Held, that the said S. was such an agent of the V. B., H. & M. Company that notice to him under the circumstances was sufficient to have entitled the vendee to have submitted to the jury evidence as to whether or not the machine complied with the conditions of warranty.

Kane, C. J., dissenting.

W. C. Stevens, B. M. Parmenter, and C. M. Myers, for plaintiffs in error, citing: Baker v. Nichols Shepard Co. (Okla.) 65 P. 102; Aultman-Taylor Co. v. Frazier (Kan.) 47 P. 157; Harrison et al. v. Russell & Co. (Idaho) 87 P. 784; Avery Planter Co. v. Risg, 56 Ill. App. 599; Huber Mfg. Co. v. Busey, 16 Ind. App. 410; Briggs v. M. Rumely Co., 96 Iowa, 202; Lindsey v. Frische (Wis.) 109 N.W. 945.

John L. Priddy, J. L. Hamon, and Charles Mitschrich, for defendant in error, citing: Aultman-Taylor Co. v. Gunderson (S. Dak.) 55 Am. St. Rep. 837; Scott v. Geiser Mfg. Co., (Kan.) 80 P. 955; E. T. Burrows Co. v. Rapid Safety Filter Co., 97 N.Y. Supp. 1048; Main Co. v. Griffin Bynum Co. (N. C.) 53 S.E. 727; Northern, etc., Co. v. Coal Co., 116 Wis. 130; Davis v. Case T. M. Co. (Ky.) 80 S.W. 1145; Murphy v. Russell (Idaho) 67 P. 421; Baird Bros. v. Walter Pratt & Co. (Ind. T.) 89 S.W. 648; Furneaux v. Esterly (Kan.) 13 P. 824; Case T. M. Co. v. Ebbinghausen, 11 N. D. 466; Massillon E. & T. Co. v. Schirmer (Iowa) 93 N.W. 599; Pa. I. W. Co. v. Hygian, etc., Co. (Mass.) 70 N.E. 427; Shearer v. Garr, etc., Co. (Tex. Civ. App.) 90 S.W. 684; Acme Harvester Co. v. Erne (Kan.) 66 P. 1004; International Harvester Co. v. Dillon (Ga.) 55 S.E. 1034.

Error from District Court, Comanche County; F. E. Gillette, Judge.

Action by the Van Buren, Heck & Marvin Company against J. R. Hale and others. Judgment for plaintiff, and defendants bring error. Reversed, with instructions.

On the 23 day of August, 1905, the defendant in error, as plaintiff, began its action in the district court of Comanche county, territory of Oklahoma, against the plaintiffs in error, John R. Hale and George W. Broe, as defendants, declaring in its petition on three certain promissory notes, each in the sum of $ 1,583.60, dated November 19, 1904, and due, respectively, three, six, and nine months after date, payable to the order of the defendant in error at the City National Bank of Lawton, Okla. T.; it being averred that said notes were given as a part of the purchase price of one Buckeye ditcher. On the 20th day of September, 1905, the defendant John R. Hale filed his separate answer, admitting the execution and delivery of the notes declared on solely and only for the purchase by defendant of one certain Buckeye traction ditcher, 54 inch by 12 inch, equipped with a 28-inch wheel and complete with the usual extras; that at the time of the execution and delivery of said notes a certain written contract of warranty, dated September 19, 1904, was made and delivered by the plaintiff to said defendant, by the terms of which it was agreed that plaintiff should and did warrant said machine in accordance with a letter of said plaintiff to one J. O. Severns, dated August 27, 1904, which is as follows:

"Findlay, Ohio, Aug. 27, 1904. Mr. J. O. Severns, Guthrie, O. T. Dear Sir: Replying to your valued favor of the 24th inst., we think with Mr. Bryson that you should have a 12 ft. machine. However, we can come under the time somewhat in which Mr. Bryson promises delivery. We could have this machine ready for shipment in six weeks after receipt of order. This machine would have 75" traction wheels with heavy steel gear rims riveted to the inside of the tires, tires to be 3/4" thick, 24" wide, boiler to be the Scotch-Marine type 60"x104", engines to be duplex slide valve 8 1/4"x8" cylinders, crank shaft to be steel forging, differential pinion and gear to be steel, machine to be equipped with No. 124 chain throughout, excepting on the feed which will be either No. 88 or No. 103. Excavating wheel to be constructed with heavy steel bucket tops, each armed with rooters, made entirely from cool steel, machine to have coal bunker and water tank beneath the engine, elevator to be driven with steel bevel gearing, gear segments and sprockets which drive excavating wheel to be steel castings, machine guaranteed to cut 60 lineal feet of trench per hour in ordinary earth at the depth of twelve feet, machine to have low speed, nine inches per minute, high speed of eight feet per minute with engines running at their regular speed. Excavating frame to be constructed of steel, as will also the standards connecting the excavating frame with the machine. Machine to be heavily and thoroughly braced throughout and to be first-class in every respect. Ground wheels to be constructed with removal and cleats, also front lugs. Tiller wheel to be constructed with removable holding tire for the purpose of moving over asphalt pavement, machine to be a strong and powerful puller so that it can be used as a road locomotive when required. Price of machine to be $ 5000.00 f. o. b. cars factory. Terms either cash on acceptance (which must be within six days after the machine starts) or bankable paper which the National Bank of Commerce of Guthrie will accept at face value, without our indorsement. We will stake our reputation on the performance of this machine and give you a machine which will run six days in the week, one which you can bank on opening up a given amount of trench each day and thus obviate the necessity of having more men than will be necessary to keep your pipe gangs going. We are sending a copy of this letter to our Mr. Bryson with whom you can take the matter up further. The machine will work in a 20 ft. alley and will cut to a width of 28 inches. We trust the above will meet with your approval and to be worded strongly enough so that if the machine is large enough for your work you will not hesitate in placing your order. We presume that a wheel 28 inches in width will be wide enough for your requirements. The actual width of cut will over-run this from an inch to an inch and quarter. We will not construct a wheel lesser width to cut to a depth of 12 feet. Very truly yours, The Van Buren, Heck & Marvin Co., by C. J. Van Buren, Pres. Dict. CJV/G."

And also a letter to J. R. Hale, dated September 7, 1904, as follows:

"Findlay, Ohio, Sept. 7, 1904. Mr. Jno. R. Hale, No. 302 C. Ave., Lawton, Okla. Ter. Dear Sir: Further in regard to your favor of the 30th ult., the writer was out of the city at the time your letter answered. On his return last evening the correspondence was gone over and we find that you were not given the information asked for. You want a 12' machine. We have one which has put in about a thousand feet of extremely hard material. In fact there was no earth at all. It was all shale, most of which could be picked, interspersed, however, with flinty ledges which were impossible to excavate except by blasting, that is, with the ordinary method. The machine went thru it. The machine was worn somewhat. We are replacing all worn parts and will have the machine in readiness for shipment in about two weeks time. Equipment as follows: Boiler is horizontal Scotch-Marine type 66" in diameter 9' 7" in depth, furnace 34" in diameter, shell 3/8," heads 1/2," furnace 1/2," tubes 68-3," length 96," boiler is equipped with a dry pipe instead of dome to allow for the stack being topped backward and passing under trolley wires. Engine is duplex, 8 3/4"x10" cylinders, coupled to forged steel crank shafts 4" in diameter; tiller wheels 54" in...