Harrison v. Russell & Co.

• Decision Date: 19 November 1906
• Citation: 87 P. 784,12 Idaho 624
• Parties: J. T. HARRISON et al., Appellants, v. RUSSELL & COMPANY, Respondent
• Court: Idaho Supreme Court

87 P. 784

12 Idaho 624

J. T. HARRISON et al., Appellants, v. RUSSELL & COMPANY, Respondent

Supreme Court of Idaho

November 19, 1906

CONTRACT OF SALE-WARRANTY OF PROPERTY SOLD-TIME FOR TESTING MACHINERY-NOTICE OF DEFECTS-WAIVER.

1. Where the contract of sale of a threshing-machine contains a warranty that is limited and conditioned by the following provision: "Continued possession or use of machinery for six days shall be conclusive evidence that the warranty is fulfilled to the full satisfaction of the undersigned, who agree thereafter to make no further claim on Russell & Company under warranty"; the "possession" therein mentioned is held to mean a possession coupled with a possibility or opportunity of using or testing the property for the uses and purposes to which it is to be applied.

2. A provision in a contract that: "No promises, whether of agent, employee, or of attorney, in respect to the payments and security, or the working of the machinery named, will be considered binding unless made in writing, ratified by the home or branch office," does not prevent the company's agent waiving written notice by going to the place where the machinery is being operated, and taking charge of the machinery and working on it with a view to putting it in a condition so that it will comply with the warranty.

3. The purpose of notice to the vendor of defects in the machinery under a contract of warranty such as in this case is to enable a vendor to send its agent or employee to the property and put it in running order and remedy defects, and when that purpose has once been served, and the agent or employee has actually gone and taken charge of the property and undertaken to put it in running order, the purpose of notice is served and it becomes immaterial whether any notice has been given at all.

(Syllabus by the court.)

APPEAL from the District Court of the Second Judicial District for Latah County. Hon. Edgar C. Steele, Judge.

Action by plaintiffs for surrender and cancellation of certain promissory notes. Judgment for defendants and plaintiffs moved for a new trial, which was denied. Plaintiffs appealed from the judgment and order. Reversed.

Reversed and remanded, with directions. Costs awarded in favor of appellants.

S. S Denning, for Appellants.

Conditions inserted in a contract, and involving forfeiture of a right of a recovery of damages for a breach thereof. must be strictly construed. (Insurance Co. v. Earle, 33 Mich. 151; Massachusetts Loan etc. Trust Co. v. Welch, 47 Minn. 183, 49 N.W. 740.)

It is provided in the contract that no promise, whether of agent, or employee, or attorney, in respect to the payment or the working or guaranty, of the machine named, will be considered binding unless in writing and ratified by the home or branch office. Such provisions as this are uniformly considered to be limitations upon the capacity of the corporation for further action, which it cannot impose upon itself, and such provisions cannot operate to prevent waiver by the corporation of the conditions of the contract which would, except for the prohibition, legally result from the acts of its authorized agents with reference to the machinery. (Nichols v. Shepard Co. v. Wiedemann, 72 Minn. 344, 75 N.W. 208, 76 N.W. 41; Massachusetts etc. Trust Co. v. Welch, 47 Minn. 183, 49 N.W. 740; Lamberton v. Connecticut Fire Ins. Co., 39 Minn. 129, 39 N.W. 76, 21 L. R. A. 222; Flatt v. D. M. Osborne Co., 33 Minn. 98, 22 N.W. 440; Davis v. Robinson, 67 Iowa 355. 25 N.W. 282; Aultman & Taylor Co. v. Frazier, 5 Kan. App. 202, 47 P. 157; Viele v. Insurance Co., 26 Iowa 9, 96 Am. Dec. 83; Younge v. Insurance Co., 45 Iowa 377, 24 Am. Rep. 784; American Cent. Ins. Co. v. McCrea, 8 Lea, 513, 41 Am. Rep. 647; Van Bories v. Insurance Co., 8 Bush., 133, Insurance Co. v. Gusdorf, 43 Md. 506; Insurance Co. v. Norton, 96 U.S. 234, 24 L.Ed. 689; Stolle v. Insurance Co., 10 W.Va. 546, 27 Am. Rep. 593; Carrugi v. Insurance Co., 40 Ga. 135. 2 Am. Rep. 567; Wakefield v. Insurance Co., 50 Wis. 532, 7 N.W. 647; Whited v. Insurance Co., 76 N.Y. 415, 32 Am. Rep. 330; Morrison v. Insurance Co., 69 Tex. 353, 5 Am. St. Rep. 63, 6 S.W. 605.)

We were entitled to show the whole circumstances of the case, the capacity of the agents, the taking back of the machine and the making of the new contract, together with the whole circumstances connected therewith. (Nichols & Shepard Co. v. Wiedemann, 72 Minn. 244, 75 N.W. 208, 76 N.W. 41; Massachusetts Loan & Trust Co. v. Welsh, supra; Flatt v. D. M. Osborne Co., 33 Minn. 98, 22 N.W. 440; Davis v. Robinson, 67 Iowa 355, 25 N.W. 280; Baker v. Nichols and Shepard Co. (leading case), 10 Okla. 685, 65 P. 100; Aultman- Taylor Co. v. Frazier, 5 Kan. App. 202, 47 P. 156; Acker v. Kimme, 37 Kan. 276, 15 P. 248.)

Forney & Moore, for Respondent.

The failure to give the stipulated notice is an acceptance of the machine and a waiver of damages for defects. (Murphy v. Russell & Co., 8 Idaho 133, 67 P. 421, and cases cited in the opinion.)

The case at bar is on all-fours with the Murphy case, unless it be that the present case is stronger against the appellants. There is no allegation in appellant's complaint that within six (6) days after taking possession of the property any notice whatever was given of any defects. There is no allegation of the terms of the warranty in the contract of purchase, nor is there any allegation that the appellants complied with the contract of purchase in any particular.

AILSHIE, J. Stockslager, C. J., and Sullivan, J. concur.

OPINION

AILSHIE, J.

The appellants commenced this action to have three certain promissory notes previously executed by them and delivered to the respondent surrendered and canceled, and for the recovery of the sum of $ 250 previously paid on the notes, and to recover the further sum of $ 106.30 for work and labor performed and supplies furnished respondent in connection with the transaction for which the notes were given. The respondent, defendant in the lower court, answered, denying the allegations of plaintiffs' alleged cause of action and alleged that there was due and owing on the three several notes the sum of $ 1042.82, and prayed judgment for that sum, together with $ 100 attorney fees, interest and costs of the action. It appears that on the seventh day of August, 1900, the appellants executed and delivered to the respondent their three certain promissory notes for the purchase price of a thresher outfit. Which they had purchased on the day previous from the defendant company. The company gave plaintiffs a contract warranting the property sold, which warranty is as follows: "That the above articles are to be of the Russell & Co's manufacture, and warranted by them to be of good material, well made, and, with proper management, capable of doing as good work as similar articles of other manufacturers. If said machinery, or any part thereof, shall fail to fill this warranty, written notice shall be given Russell & Co., Massillon, Ohio, and to the party through whom the machinery was purchased, stating wherein it fails to fill the warranty, and time, opportunity, and friendly assistance given to reach the machinery, and remedy the defects. If the defective machinery cannot then be made to fill the warranty, it shall be returned by the undersigned to the place where received, and another furnished on the same terms of warranty, or money and notes to the amount represented by the defective machinery shall be returned and no further claim be made on Russell & Co. Continued possession or use of the machinery for six (6) days shall be conclusive evidence that the warranty is fulfilled to the full satisfaction of the undersigned, who agree thereafter to make no further claim on Russell & Co. under warranty." The Harrisons received the property from defendant's warehouse at Palouse City on the sixth day of August, and removed it thence to their premises, and on the eleventh day of August commenced to use and operate the machine. They do not claim to have given the defendant or its local agent any notice as to defects in the property within six days after receiving the property from their warehouse, but they do claim to have given the notices required in the warranty within six days after commencing to use the machine. As soon as the plaintiffs admitted to the trial court that no written notice had been given within six days after receiving the property, the judge informed their counsel that they had by that act waived the benefit of the warranty and that they could in no event hold the defendants under the warranty. Plaintiffs' counsel thereupon offered to prove that written notice had been sent to the company at Massillon, Ohio, on the fifth day after commencing to use the machine, and that they also gave notice to the local agent; that the local agent, subsequent to the receipt of such notice, sent experts to the plaintiffs premises. and also came in person, and undertook to put the machine in such order as to make it run; that plaintiffs talked with the local agent over the telephone, and told him that the machine would not run, and that they were going to return it. and the agent requested them not to return it, and also requested them not to give any written notice, that they did not want the notice, and that they would make the machine run or give them another machine, and that if they failed to furnish them another machine that would run he would give them back their notes. It seems from the evidence and proffered evidence that at least five or six different agents and expert employees of the defendant company went from time to time to the plaintiffs' premises, and examined and worked on this machinery and endeavored to put it in running order, and from...