Hartwell v. Minneapolis-Moline Power Implement Co.

• Court: Colorado Supreme Court
• Writing for the Court: HAYS, Justice.
• Citation: Hartwell v. Minneapolis-Moline Power Implement Co., 186 P.2d 228, 117 Colo. 291 (Colo. 1947)
• Decision Date: 03 November 1947
• Docket Number: 15751.
• Parties: HARTWELL v. MINNEAPOLIS-MOLINE POWER IMPLEMENT CO. et al.

186 P.2d 228

117 Colo. 291

HARTWELL v. MINNEAPOLIS-MOLINE POWER IMPLEMENT CO. et al.

No. 15751.

Supreme Court of Colorado, in Department.

November 3, 1947

Error to District Court, Lincoln County; G. Russell Miller, Judge.

Suit by H. F. Hartwell against Minneapolis-Moline Power Implement Company, a corporation, and M. Meyers, also known as M Myers, to recover damages allegedly sustained because of defendants' alleged failure or refusal to deliver harvesters ordered by plaintiff. To review a judgment on a directed verdict for defendant, the plaintiff brings error.

Judgment affirmed.

Where the evidence was such that if a verdict had been rendered for the plaintiff on the undisputed facts, it would have been the court's duty to set the verdict aside, court properly directed a verdict for defendants.

Gelt & Grossman, A. B. Crosswhite, and Chutkow and Atler, all of Denver, for plaintiff in error.

Archibald A. Lee and Benjamin Griffith, both of Denver, and Charles H Beeler, of Hugo, for defendants in error.

HAYS Justice.

H. F Hartwell, plaintiff below, brought suit in the district court in Lincoln county, against Minneapolis-Moline Power Implement Company, a corporation, and M. Meyers, to recover damages alleged to have been sustained by him growing out of his order for two Model G-4 harvesters, and the alleged failure or refusal of defendants to deliver same. The trial court directed a verdict in favor of defendants, and entered judgment accordingly. The plaintiff is here by writ of error seeking reversal of the judgment.

The pertinent facts are: On January 3, 1942, Hartwell signed an order for the purchase of two harvesters from the Company through its branch store, to be shipped 'via Co truck' to the plaintiff at Arriba, Colorado, 'when available 1942 (or as soon thereafter as the company can do so)'. It is also recited in the purchase order, 'cash with order $200.00,' and the balance of $3,003.90 to be paid 'cash on or before delivery.' On June 2nd, 1942, the company wrote Hartwell: 'We can ship one machine for you this month, but the second machine will not be available until in August. This may be too late for the second machine and, if so, we ask that you please advise us to that effect in order that we may reallot it to another territory where the harvest will be later.'

On June 3, 1942, the plaintiff replied:

'August is out of the question for a combine. Wheat is advancing rapidly due to the dry weather and I could well be in harvest in two weeks or possibly three.

'I was foresighted enough to realize that parts and combines would be hard to get this fall and had full assurance from the Denver Branch that I would get two machines, if that number was shipped to the Denver house. If Denver Branch is shipped only one machine this fall, I'll be satisfied. If more than one is shipped or sold through this Branch, I'll expect both my combines. That is the way they were bought and that is the way I expect the Co. to deliver.'

Thereafter about June 20, 1942, plaintiff purchased one of the company's harvesters through the Fruhling Motor Company at Flagler Colorado, and took delivery at that place. At the time of that purchase he was required by the Company to, and did, sign a new or resale order; whereupon plaintiff demanded the $200 deposit made on the purchase of the two harvesters June 2, 1942, above mentioned, be returned to him and applied on the purchase price of said harvester then and there delivered. Plaintiff not only demanded the return of his deposit of $200, but refused upon request to sign an order for a second harvester or leave $100 on deposit therefor or otherwise indicate in writing that he was obligated for the purchase of a second harvester, stating as a reason for such refusal that he 'didn't know whether he would need it [harvester] or not, that it depended upon the crop.'

Counsel for Hartwell state in their brief that the issue is herein narrowed down to:

'1. Whether or not the order placed by the plaintiff with the Denver branch of the defendant Company was accepted, irrespective of the language contained in Exhibit J; if there was such an acceptance, whether by conduct, unreasonable delay, correspondence, acceptance and retention of the initial payment, partial performance, then a contract existed between the plaintiff and the defendant Company, and if such existed the defendant Company was responsible to the plaintiff for the breach of that contract, not only for the customary damages but the unusual damages which result

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