Houghton Implement Co. v. Vavrowski
| Decision Date | 10 March 1910 |
| Citation | 125 N.W. 1024,19 N.D. 594 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Walsh county, Kneeshaw, J.
Action by the Houghton Implement Company against Frank Vavrowski. Verdict directed for the plaintiff. New trial granted. Plaintiff appeals.
Affirmed.
Skulason and Burtness, for Appellant.
Jeff M Myers, for Respondent.
This case was before this court on a former appeal, and is reported in 15 N.D. 308, 109 N.W. 1024. It is an action for damages for an alleged breach of a contract of sale of a gasoline engine. The facts will only be partially set forth now as they are fully set forth on the decision in the other appeal. An amended answer was filed since that appeal wherein the defendant admits the contract of sale of the engine, and specifically sets forth the warranty in the sale, and wherein there was a breach of the same. The answer also alleges: That the engine was ordered as a sample engine to be used in making sales as the agent of the Kansas City Hay-Press Company, of which the plaintiff was the general agent in North Dakota. That, after the defendant ascertained that the same did not comply with the warranty, he notified the Kansas City Hay-Press Company and this plaintiff that he would not settle for the same. After such notice to said parties, it was agreed that, if the defendant would retain such engine for a time, they would procure the same to be overhauled and have it put in first-class shape to do satisfactory work before the commencement of the threshing season of 1902, providing the defendant would notify said Kansas City Hay-Press Company 30 days in advance of the time he desired to use said engine. The answer also contains this allegation: "The defendant immediately, and some time in the spring of 1902, notified the Kansas City Hay-Press Company, and also the plaintiff, that if he was to complete the conditional sale of said engine made by him upon the authority of the plaintiff, it would be necessary to have it put in proper shape at once." The answer also contains this allegation: "That the conditional sale of said engine referred to was made by the defendant to one M. Vavrowski in the fall of 1901, upon the condition that the Kansas City Hay-Press Company would, before the threshing season of 1902, put said engine in shape to do good and efficient work as a threshing engine which said contract of sale the plaintiff, as the agent of the Kansas City Hay-Press Company, the owners at said time of said engine, duly authorized this defendant to make." The defendant further alleges that the Kansas City Hay-Press Company entirely refused to make an effort to put said engine in proper repair until towards the close of the threshing season of 1902, and that, when defendant ascertained that said company were delaying said matter to the time when it would be too late to use said engine during the threshing season of 1902, he notified the plaintiff and said hay-press company that he would not accept said engine and that he held it thereafter subject to their order and as the agent of the Kansas City Hay-Press Company. The answer also alleges another claim, to the effect that the defendant is entitled to a partial offset of the plaintiff's claim, if found valid, on account of certain commissions claimed to be due to defendant on the sale of said engine. On this trial a verdict was directed in favor of the plaintiff for the sum of $ 2,360.66, being the full amount claimed by the plaintiff. The defendant made a motion for a new trial, containing 34 specifications of error. This motion was granted by the judge of the district court of the Seventh judicial district, but the trial took place before another judge.
If these specifications of error present one or more prejudicial errors, the order appealed from must be affirmed.
In the court below, the defendant contended that the plaintiff is not the owner of the claim sued upon. This question is not urged in this court, and will therefore be deemed abandoned.
On the first appeal it was found that the warranty was not complied with, as the engine failed to work according to its terms. It was also held on that appeal that the failure to show that the engine worked in compliance with the warranty became immaterial in view of the fact that the plaintiff and defendant had subsequently entered into a new arrangement under which the plaintiff agreed to remedy the defects in the engine before the harvest season of 1902. It was also decided, on that appeal, that the fact that the defendant had not returned the engine on its failure to work according to the warranty left the verdict without sufficient evidence to sustain it. In other words it was held that the evidence was insufficient to show a rescission of the sale for the reason that the engine had not been returned by the defendant, or a showing made that its return had been waived by the plaintiff.
The question now presented is in reference to what transpired in 1902 as to the repair of the engine so as to comply with the warranty, under the agreement made in 1901. Upon a determination of these matters will depend whether the plaintiff was entitled to a directed verdict for the full amount claimed to be due. To determine this question, we will only review the record so far as it pertains to matters occurring on and after May 8, 1902.
On that day the plaintiff, through its president, wrote the defendant at Pisek, N.D., that the Kansas City Hay-Press Company agreed to fit up the engine before threshing time and that the defendant was to give 30 days' notice before the time that he wanted the engine put in repair. Up to this time the evidence shows that the defendant had never unconditionally accepted the engine. He had always claimed that it would not work, and had refused to execute the notes and mortgage for the purchase price. Under the agreement made in 1901...
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