Holden v. Advance-Rumely Thresher Company, Inc., a Corp.
| Decision Date | 20 November 1931 |
| Docket Number | 5950 |
| Citation | 239 N.W. 479,61 N.D. 584 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Hettinger County, Pugh J.
Affirmed.
Lawrence Murphy, Fuller & Powers, for appellant.
If when brought into court, a party fails to assert his claim or present proper evidence, when he had opportunity to do so, he should not be permitted to litigate it in a subsequent suit. Foogman v. Patterson, 9 N.D. 255, 83 N.W. 15; Donovan v. Dickerson, 28 N.D. 229, 148 N.W. 537; Sheridan v. McCormick, 39 N.D. 641, 168 N.W. 59; Borden v. Graves, 20 N.D. 225, 127 N.W. 104; Reko v. Moore, 44 N.D. 644, 176 N.W. 115.
Any right, fact or matter in issue, and directly adjudicated upon, or necessarily involved in, the determination of an action before a competent court in which a judgment or decree is rendered upon the merits, is conclusively settled by judgment therein and cannot again be litigated between the parties and privies, whether the claim or demand, purpose, or subject matter of the two suits is the same or not. 34 C.J. 743; 15 R.C.L. 949; Gerwin v. McDonnell, 54 N.D. 509, 209 N.W. 968.
A rescission of an express contract renders the same of no force or validity so far as its enforcement or damages for its breach are concerned. Chesley v. Soo Lignite Coal Co. 18 N.D. 19, 121 N.W. 73; Blahnik v. Farm Improv. Co. 181 Cal. 379, 184 P. 661; Swan v. Talbott, 152 Cal. 142, 17 L.R.A.(N.S.) 1066; Motor v. Callander, 30 Cal.App. 41; Painter v. Manuel, 25 Okla. 59, 108 P. 749; Porter v. Donovan, 65 Or. 1, 130 P. 393; Crowe v. Crowe, 70 Or. 534, 139 P. 854.
Res adjudicata operates to preclude the redetermination of a question in a subsequent suit, even though the subsequent suit may be upon a different cause of action. Kallberg v. Newberry, 43 N.D. 521, 170 N.W. 113.
A judgment concludes the defendant as to every defense set up in his pleadings and with certain limitations as to every defense which might have been interposed therein. Green v. Underwood, 86 F. 427; Little v. Harrington, 71 Mo. 390; Cohn v. Lehman, 93 Mo. 574; 1 Bancroft, Code Pl. § 234; Thoreson v. Minneapolis Harvester Works (Minn.) 13 N.W. 157.
A matter once judicially decided is finally decided. 34 C.J. 743.
Rescission of a contract on the ground of fraud must be made promptly, or, if not made promptly, legal excuse or justification for the delay must be shown. Annis v. Burnham, 15 N.D. 577, 108 N.W. 549; Gamble v. Tripp, 99 Cal. 223, 33 P. 851; Schneider v. Henley (Cal. App.) 215 P. 1036.
The right to rescind is waived by unexcused delay, although no prejudice or injury be shown as a result thereof. Turbeson v. Olson, 45 N.D. 415, 178 N.W. 281.
An election to affirm or rescind once made is final. As a corollary of this, a person cannot rescind in part and affirm in part. Stair v. Hibbs, 52 N.D. 910, 204 N.W. 621; Buena Vista v. Tuohy, 107 Cal. 243, 40 P. 386; Neal v. Reynolds, 38 Kan. 432; Minnehaha Oil Co. v. Florence, 92 Okla. 17; Teft v. Schaefer, 136 Wash. 302.
A law is unconstitutional if it violates the fundamental and vital principle of freedom of contract, protected by state and Federal Constitutions. Algeyer v. Louisiana, 163 U.S. 583; Adair v. United States, 208 U.S. 1; Adkins v. Children's Hospital, 261 U.S. 525.
Every personal or private law which proposes to destroy or affect individual rights or does the same thing by affording remedies leading to the same consequences is unconstitutional and void. Cotting v. Godard, 183 U.S. 105.
Jacobsen & Murray and F. M. Jackson, for respondent.
A cause of action to recover back the purchase price is based primarily on the warranty and the breach thereof. Fuller v. Fried, 57 N.D. 824, 224 N.W. 668.
The former recovery of a judgment by this defendant against the plaintiffs, on default of the latter upon some of the notes given for the purchase of the machine, constituted no bar to a recovery in this action, for breach of the contract of warranty. Thoreson v. Minneapolis Harvester Works (Minn.) 13 N.W. 156; North Baltimore Bottling Glass Co. v. Altpeter (Wis.) 113 N.W. 453; Occan Shore Development Co. v. Hammond (Cal.) 175 P. 706.
A judgment on a note for the purchase price of an article does not bar an action thereafter to recover back the purchase price. Independent Harvester Co. v. Tinzeman (C.C.A.) 253 F. 955.
Where the second action between the same parties is upon a different claim or demand the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon which the findings or verdict were rendered. Cromwell v. Sac County, 94 U.S. 351, 24 L. ed. 195; Myers v. International Trust Co. 44 S.Ct. 86; Barnes v. Chicago M. etc. Co. 122 U.S. 1; Tessler v. Rothman, 232 Mich. 62, 204 N.W. 694; Harris v. Hessin, 46 N.D. 330, 179 N.W. 698.
When the record does not settle the question, oral evidence is admissible to show what was in fact decided, but the answer must clearly show the ultimate fact as to what was decided. If that fact is left in doubt by the answer the defense fails. Fahey v. Esterley Harvesting Mach. Co. (N.D.) 55 N.W. 580; Warren v. Ward (Minn.) 97 N.W. 886.
Whether the right to rescind is exercised within a reasonable time is to be determined from all the circumstances; the chief consideration being as to whether there was so long a delay as to the result in prejudice to the other party. Dwinnell v. Boehmer, 60 N.D. 302; Palaniuk v. Allis-Chalmers Mfg. Co. 57 N.D. 199, 220 N.W. 638.
Party desiring more specific instructions must request them at the trial. Buchanan v. Minneapolis Threshing Mach. Co. 17 N.D. 343, 116 N.W. 335; Advance-Rumely Threshing Mach. Co. v. Geyer, 40 N.D. 18, 168 N.W. 731; Fox v. Bolt (Wis.) 178 N.W. 467; International Harvester Co. v. Thomas, 43 N.D. 199, 176 N.W. 523.
An agent having power to sell a machine under contract containing conditions for the benefit of the seller has authority to waive such conditions. Reeves & Co. v. Younglove (Iowa) 127 N.W. 1007; Axford v. Gaines, 50 N.D. 341.
The breach of a warranty does not rescind a sale or give the vendee a right to rescind, but merely right of action for damages. Lynch v. Curfman (Minn.) 68 N.W. 5; Evenson v. Keystone Mfg. Co. (Minn.) 86 N.W. 8.
When a judgment is offered in evidence in a subsequent action between the same parties, upon a different demand, it operates as an estoppel only upon the matter actually at issue and determined in the original action; and such matter, when not disclosed by the pleadings, must be shown by extrinsic evidence. Davis v. Brown, 94 U.S. 423, 24 L. ed. 204; Virginia-Carolina Chemical Co. v. Kirven, 215 U.S. 249, 54 L. ed. 179.
This is an action predicated upon an alleged rescission of a contract for the sale of a tractor to the plaintiff. The plaintiff had paid part of the price and suffered a judgment on the remaining purchase price notes, so judgment was entered in his favor in the sum of $ 3,052.50. The defendant moved for judgment notwithstanding the verdict or in the alternative for a new trial, which motion was denied. The instant appeal is from the judgment and from the order denying the motion. The facts essential to an understanding of the questions raised on the appeal may be stated as follows:
In January, 1925, the plaintiff, Holden, executed an order directed to the defendant, which was later accepted by it for an Oil Pull tractor rated 30-60 and an engine guide, for which he agreed to pay the freight and the purchase price as follows: $ 400 cash; note for $ 1,000 due October 1, 1925; note for $ 1,000 due October 1, 1926; note for $ 945 due October 1, 1927, which notes were to be secured by a chattel mortgage on the machinery purchased and upon a separator owned by Holden -- the plaintiff also to turn over to the defendant in trade a used tractor. The machinery was delivered on April 15, 1925, and settled for in accordance with the contract. Soon thereafter the plaintiff had difficulty operating the tractor and made complaint to the local agents of the defendant, who advised him that others had had similar troubles; that the company had experts out fixing up these machines; that his would be fixed up before the next spring and if not the money and the notes would be returned. When the plaintiff's first note matured he advised the defendant that he was not paying the same on account of its failure to remedy the defects in the machinery and the defendant in turn advised the plaintiff that while it was not under any contractual obligation to provide any further service it felt it was nevertheless under moral obligation to do so and that the plaintiff could depend upon it to furnish any necessary service. It insisted upon the payment of the note amounting at that time to $ 1,041.65. This note was paid by the plaintiff on November 7th, he notifying the defendant at the time that it was with the understanding that the defendant's expert would work on the machine. Later the defendant's expert came but did not complete the job of putting the machine in shape, and the following spring, in May, the plaintiff notified the defendant that the machine was entirely out of commission; that he could see no other recourse than to sue the defendant for damages unless it was made fit for the field by Wednesday, May 26th. It was not put in condition by that time. Thereafter some effort was made to put it in condition, but it never worked satisfactorily or efficiently. During the period of the difficulties with the machinery the plaintiff made two trips to the defendant's office at Aberdeen, South Dakota, in regard...
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