Hanson v. Gaar, Scott & Co.

• Decision Date: 26 April 1897
• Citation: 68 Minn. 68,70 N.W. 853
• Parties: HANSON v GAAR, SCOTT & CO.
• Court: Minnesota Supreme Court

68 Minn. 68

70 N.W. 853

HANSONvGAAR, SCOTT & CO.

Supreme Court of Minnesota.

April 26, 1897.

(Syllabus by the Court.)

1. Upon the second trial of an action brought to recover damages for an alleged breach of an agreement fully set out in a former opinion of this court (65 N. W. 254, 63 Minn. 94), the court charged the jury that, if plaintiff was entitled to recover, the measure of damages was the difference between the value of the separator as it was when the agreement was entered into and what it would have been had defendant complied with the terms and conditions of such agreement. Held that, as an abstract proposition, this part of the charge was correct, and that the court did not err, in the absence of any request that it be explained or enlarged upon, and in the absence of any suggestion by counsel as to any other rule applicable to the facts. Held, also, that the correctness of the charge upon this point cannot be questioned under an assignment that the court erred when instructing the jury that the measure of damages was “what the machine would have been worth if it had been as warranted.”

2. Certain other unimportant assignments of error considered, and disposed of.

Appeal from district court, Otter Tail county; L. L. Baxter, Judge.

Action by Peder Hanson against Gaar, Scott & Co. for breach of contract. There was a verdict for plaintiff, and from an order denying a new trial defendant appeals. Affirmed.

John M. Rees, for appellant.

Parsons & Brown, for respondent.

COLLINS, J.

On the first trial of this action it was dismissed when plaintiff rested. From an order denying his motion for a new trial an appeal was taken, and a new trial ordered. 63 Minn. 94, 65 N. W. 254. A second trial resulted in a verdict for plaintiff, and from an order refusing to grant defendant's motion for a new trial an appeal has been taken. Many of the assignments of error relate to rulings made below in strict accordance with the views expressed in the former opinion, and an attempt has been made in the argument to have the court overrule some of the conclusions there announced. We there held that the consideration was ample for the execution and delivery of what is known as the “November agreement”; that it could be and was made to cover the faults and defects in the separator of which plaintiff complained, well known to him and to defendant's agent who made the settlement, and for the express purpose of covering and including the terms and conditions of the warranty contained in the original contract, which terms and conditions plaintiff insisted had not been fulfilled or complied with. We also held that plaintiff made out a case for substantial damages,and that, under the circumstances shown at the trial, he was entitled to recover, if at all, the difference in the value of the separator as it was when the November agreement was entered into and what it would have been had it been made to fulfill the warranty as stipulated in such agreement. In so far as the questions involved in the first appeal were discussed and passed upon in the former opinion, the conclusions reached became the law of the case. In addition to this, it is proper to say that nothing has been urged which leads us to doubt the correctness of that decision in every particular. Possible the statement as to the measure of damages should have been more explicit, but what was said had reference solely to the evidence then before us in an action dismissed when plaintiff rested. It was correct as far as it went,...