Halley v. Folsom

• Decision Date: 04 February 1891
• Docket Number: 6731
• Citation: 48 N.W. 219,1 N.D. 325
• Court: North Dakota Supreme Court

48 N.W. 219

1 N.D. 325

MARY C. HALLEY, Respondent, v. J. B. FOLSOM, Appellant

No. 6731

Supreme Court of North Dakota

February 4, 1891

Rehearing Denied February 25, 1891.

APPEAL fro district court, Ransom county; Hon. W. S. LAUDER, Judge.

Affirmed.

J. E Robinson, for appellant, cited: U. S. Digest, Sales, § 1099; Pickett v. Hayes, 13 Ind. 181; 5 Wait's Actions and Defenses, 554, 563; Osborne v. Gantz, 60 N.Y. 540; Maxwell v. Lee, 27 N.W. 196; Benjamin on Sales, § 311; Poland v. Brownell, 131 Mass. 138.

Messrs Goodwin, Van Pelt & Gammons, for respondent, cited upon the point stated in first paragraph of the foregoing syllabus: Dailey v. Green, 15 Penn. St. 118; Byers v. Chapin, 28 Ohio St. 300; Field v. Kinnear, 4 Kan. 409; Taylor v. Cole, 111 Mass. 363; Polhemus v. Heman, 45 Cal. 573; Brigg v. Hilton, 99 N.Y. 517. On the third point they cited: Brewing Co. v. Mielenz, 5 Dak, 136; Pielke v. R. R. Co. id. ib. 444. On the fourth point they cited: Green v. Disbrow, 56 N.Y. 336; Greenleaf on Evidence, vol. 1, § 52. On the fifth point: Mordhorst v. Neb. Tel. Co. 44 N.W. 469; Kern v. Bridwell, 21 N.E. 664; Smedhurst v. Proprietors, etc., 19 id. 387.

OPINION

BARTHOLOMEW, J.

This was an action to recover damages for a breach of warranty in the sale of certain seed wheat. At the close of plaintiff's testimony, and again when the testimony was all in, appellant moved the court to take the case from the jury, and direct a verdict for defendant, for the reason "that the sale mentioned in the complaint was not a sale with a warranty; that it was only an executory contract for subsequent sale and delivery of wheat; and that the subsequent acceptance of the wheat, with opportunity for examination, bars any action for recovery by reason of the wheat not being as contracted for." The adverse ruling on this motion raises the first question in the case. The contract was made at a distance of several miles from the wheat. Plaintiff was represented by her husband, who acted as her agent. The amount, price, terms of payment, and security to be given were agreed upon, and, as plaintiff claims, the warranty was given. Plaintiff not being present to execute the note and mortgage, the papers were prepared, and taken to plaintiff, who signed them, and returned them the following day by her husband, who delivered them to an agent of the defendant, and received an order for the wheat. At that time the wheat was in the possession of another agent of defendant, and was an unseparated portion of a much larger quantity of wheat of substantially the same quality. Plaintiff sent her son, a young man nineteen years of age, after the wheat, and it was hauled away during two succeeding days. For the purposes of this case we will assume, without deciding, that there was no completed sale until the wheat was delivered, and we will also assume that the son had all the authority to reject the wheat that the plaintiff would have had if present; still we think there was no error in overruling appellant's motion. It is true that there can be no effective warranty--no warranty that will serve as the basis of an action--without a completed sale. If the purchaser reject the property because not of the specified quality, he may have an action on the contract for failure to deliver, but he can have no action upon the warranty. There can be no breach of the warranty if the title never vests in the purchaser.

The case of Osborn v. Gantz, 60 N.Y. 540, cited by appellant, was a case where the purchaser refused to accept the goods. In executory contracts for the sale of personal property, the acceptance of the property by the vendee, with full opportunities for inspection, and where he is not induced to refrain from inspection through any fraud or artifice of the vendor, is generally regarded as an admission that the property corresponds with the terms of the contract of sale. Reed v. Randall, 29 N.Y. 358; Dutchess Co. v. Harding, 49 N.Y. 321. But this rule does not cover latent defects, or defects not readily discernible on inspection. It is entirely competent, however, for the vendor, in an executory contract of sale, to make an absolute warranty of the quality of the goods. It is purely a question of intent. If he intend to extend the warranty beyond the delivery, and make himself responsible for any damages that may result in case the goods are not as represented, and if the other party so understand it, he is bound. In this respect the law is the same whether the contract of sale be executory or in proesenti. Patent defects are not within the warranty in either case. And in either case, where defects are discovered after delivery, the vendee is not bound to return or offer to return the goods, but may retain and use the same, and bring his action upon the warranty. In Day v. Pool, 52 N.Y. 416, Peckham, J., delivering the opinion of the court, says: "In addition to the mere contract of sale in an executory as well as on a sale in proesenti, a vendor may warrant that an article shall have certain qualities. This agreement to warrant in an executory contract of sale is just as obligatory as a warranty on a present sale and delivery of goods." And again: "I see no reason why the same rights and remedies should not attach to a warranty in an executory as in a present sale, and no greater. The purchaser in an executory sale could not rely upon a warranty as to open, plainly apparent defects, any more than he could in a sale in proesenti." And again: "In my opinion, where there is an express warranty, the purchaser, whether in an executed or an executory sale, is not bound to return the property upon discovering the breach, even if he have a right to do so." In Maxwell v. Lee, (Minn.) 34 Minn. 511, 27 N.W. 196, it is said: "It is undoubtedly the settled law in this state, and generally elsewhere, that on an executory contract of sale, as in a sale in proesenti, of personal property, the vendor may warrant the quality; and that the vendee, upon the receipt of it, and upon subsequent discovery of the breach of warranty, is not bound to return, (even if he had the privilege of doing so,) but may retain and use the property, and have his remedy upon the warranty." See, also, Scott v. Raymond, 31 Minn. 437, 18 N.W. 274; Mandel v. Buttles, 21 Minn. 391; Polhemus v. Heiman, 45 Cal. 573; Gurney v. Railroad Co., 58 N.Y. 358; Hull v. Belknap, 37 Mich. 179; Axe Co. v. Gardner, 64 Mass. 88, 10 Cush. 88; Brigg v. Hilton, 99 N.Y. 517, 3 N.E. 51; Doane v. Dunham, 65 Ill. 512; Dailey v. Green, 15 Pa. 118; Brantley v. Thomas, 22 Tex. 270. As appellant's motions were based upon the theory that there could be no warranty in an executory...