Helvetia Copper Co. v. Hart-Parr Co.

• Decision Date: 21 February 1919
• Docket Number: No. 21039.,21039.
• Citation: 171 N.W. 272,142 Minn. 74
• Parties: HELVETIA COPPER CO. v. HART-PARR CO.
• Court: Minnesota Supreme Court

142 Minn. 74

171 N.W. 272

HELVETIA COPPER CO.

v.HART-PARR CO.

No. 21039. ^*

Supreme Court of Minnesota.

Feb. 21, 1919.

Appeal from District Court, Hennepin County; John H. Steele, Judge.

Action by the Helvetia Copper Company against the Hart-Parr Company. Verdict for plaintiff for $6,823.72, and defendant appeals. Verdict to stand, and new trial granted for litigation of question of breach of warranty and damages.

Syllabus by the Court

Helvetia Copper Co. v. Hart-Parr Co., 137 Minn. 321, 163 N. W. 665, followed, to the effect that the question whether plaintiff had a right to avoid a settlement for fraud was a question of fact for the jury.

Plaintiff was not, as a matter of law, barred by estoppel, by its acts, or by acquiescence, from avoiding the settlement.

In repudiating a settlement for fraud it is not necessary as a condition precedent to return the amount of a payment made on a liquidated claim justly due and owing simply because the payment was made as part of the transaction of settlement.

A provision in a sale contract that the sole remedy for breach of a warranty shall be a return of the article sold and recovery of the price paid is a valid provision, and an action for damages for such breach cannot be maintained.

The refusal of the vendor to receive a return and refund the price does not review the remedy of damages for breach of warranty. T. J. Stevenson and W. B. Anderson, both of Minneapolis, and Lawrence & Murphy, of Fargo, N. D., for appellant.

George T. Simpson, Henry Volk, and Gordon Cain, all of Minneapolis, for respondent.

HALLAM, J.

This is an action for damages for breach of warranty in the sale of a tractor. In May, 1909, at Charles City, Iowa, defendant contracted to sell to plaintiff an ‘eighty brake horse power, forty tractive horse power gas tractor’ to be shipped to Vail, Ariz. Plaintiff agreed to pay the freight and to pay a price of $4,300 less 5 per cent. discount for cash. The tractor was shipped and arrived at Vail Cotober 8, 1909. Plaintiff paid the freight and the cash price.

The contract contained the following warranties:

‘It warranted that it is well made and of good materials and workmanship. That if properly operated it will develop the rate brake horse power continuously and easily. That it will successfully operate a threshing outfit of a size and capacity usually operated successfully by an ordinary steam traction engine, the actual brake horse power rating of which is the same. That for road purposes it will as successfully draw the threshing outfit used with this engine as an ordinary steam traction engine of like actual brake horse power rating will handle its load. That for tractive work on firm footing and level ground, it will pull the same load that can be successfully and continuously pulled week after week by as many ordinary horses as are represented by its tractive rating.’

The contract contains this further stipulation:

‘If inside of six days from the day of its first use it shall fail to fill the warranty with respect to development of power, notice shall be given to the Hart-Parr Company at their office at Charles City, Iowa, by registered letter or telegram, stating particularly wherein it fails to fill the warranty, and reasonable time given said company to send a competent person to remedy the defects, if any there be, the purchaser rendering the necessary and friendly assistance. If the engine cannot be made to develop the guaranteed power it shall be returned by the purchaser free of charge to the shipping point where received, and the payments made will be refunded and no further claim is to be made on the company.’

The complaint alleges, that within the six days the engine failed to develop the guaranteed power, that defendant's agent and expert was present at the time and observed the failure and undertook to remedy the defect and represented that he had done so, that thereafter plaintiff attempted to use it, but ‘the same defects in workmanship, material and design and failure to develop power’ appeared, and additional defects appeared, in that the explosions in the cylinder were not regular and frequently missed, thus diminishing the motive power, that the cooling system was improprly designed so that it became overheated, that the nuts, bolts and castings were of inferior workmanship and material, improperly fitted and joined. It is further alleged that it has been impossible to repair and readjust the engine so that it will operate as provided in the contract, that the defects in construction, workmanship and material are irremediable, and that the engine was a total failure.

The complaint then alleges that on April 26, 1910, plaintiff offered to return the tractor and demanded the return of the purchase price, that defendant refused to accept the return or to repay the purchase price.

There is evidence to sustain these allegations of the complaint.

The answer denies all breaches of warranty, denies the offer to return, and alleges that on April 26, 1910, all differences between the parties were settled and adjusted in consideration of payment of $493.88 by defendant and the cancellation of an account of $309.60 against plaintiff, and that plaintiff acquiesced in said settlement for several years.

Plaintiff in reply alleges that the settlement was procured by misrepresentation to the effect that certain new parts would put the engine in good working order and bring about a fulfillment of the original warranty, and for this misrepresentation plaintiff asks that the settlement be set aside.

Plaintiff did not rest on its alleged rescission of the contract. At the opening of the trial plaintiff's counsel stated that the case was to be tried as one in damages for breach of warranty. The case was so tried and submitted. The jury returned a verdict for $6,822.72.

[1] 1. On a former appeal, 137 Minn. 321, 163 N. W. 665, this court held on the evidence then before it that the question whether plaintiff was entitled to relief from the settlement of April 26, 1910, on the ground of misrepresentation, was a question of fact for submission to a jury. The evidence on that point is not substantially different on the record now presented. We adhere to our former decision and hold that it was not error to submit this question to the jury.

[2] 2. Defendant contends that the settlement was never disaffirmed but was treated by both parties as valid and binding until the commencement of this action and that ‘plaintiff has been guilty of such long continued neglect of his alleged rights * * * as to effectually estop it’ from setting the settlement aside. We find no element of equitable estoppel in the case. There is at least no conclusive evidence that defendant was prejudiced by the delay. Yet apart from the matter of estoppel a party may affirm a fraudulent settlement by affirmative acts or even by long acquiescence after discovery of the fraud. Whether the fraud is condoned and the settlement ratified is usually a question of fact for the jury. Marple v. Minneapolis & St. L. Ry. Co., 115 Minn. 262, 132 N. W. 333, Ann. Cas. 1912D, 1082;Brainard v. Van Dyke, 71 Vt, 359, 45 Atl. 758; Bigelow on Fraud, 430. It was in this case. Plaintiff's evidence is that after the settlement and after the making of the...