Int'l Soc. v. Hildreth
| Decision Date | 08 May 1902 |
| Citation | 11 N.D. 262,91 N.W. 70 |
| Parties | INTERNATIONAL SOC. v. HILDRETH. |
| Court | North Dakota Supreme Court |
1. One who contracts to purchase personal property of a particular kind and description is under no legal obligation to receive other or different property in satisfaction of his bargain, and, if the property tendered is not the property bargained for, he may reject it. When property which does not comply with the description in the contract of purchase is accepted and retained, the purchaser by such acceptance affirms the contract, and his sole remedy, in cases where a remedy survives the acceptance, is for breach of the contract.
2. In an action to recover a balance due upon the purchase price of a set of books sold under a written subscription contract, which particularly described the books agreed to be purchased, and in which the defendant, who had accepted and retained the books, sought to recoup damages for defects, the court instructed the jury that, if the books substantially complied with the contract, they should return a verdict for the plaintiff for the full amount of the purchase price. Held error, for the reason that only by a complete performance by the plaintiff could he avoid liability for a breach unless there was a waiver. Held, further, that the erroneous instruction was without prejudice, for the reason that the jury in fact found that there was not a substantial compliance, and awarded damages to defendant for the defect alleged.
3. It is held that the trial court did not err in refusing to direct a verdict for defendant, or in ruling on evidence, or in denying defendant's motion for new trial on the alleged insufficiency of the evidence to justify the verdict.
Appeal from district court, Cass county; Charles A. Pollock, Judge.
Action by the International Society against M. A. Hildreth. Judgment for plaintiff, and defendant appeals. Affirmed.M. A. Hildreth, in pro. per. W. C. Resser (John E. Greene, of counsel), for respondant.
The plaintiff brought this action to recover a balance claimed to be due from the defendant upon the purchase price of “one complete set of the Century Edition of a Library of the World's Best Literature.” The set of books in question consisted of 45 volumes, and was sold and delivered to the defendant pursuant to a written subscription contract executed by him on August 27, 1897. The delivery of the books by plaintiff was completed on July 12, 1898. A copy of the subscription contract is attached to, and made a part of, the plaintiff's complaint. The defendant pleaded a breach of the conditions contained in the subscription contract, alleged damages resulting therefrom, and prayed for an affirmative judgment. The question of the alleged breach of contract and amount of damages was submitted to the jury, and a verdict was returned for the plaintiff for $61.50, which was $33.50 less than was due upon the purchase price under the terms of the contract. Defendant moved for a new trial. This was denied, and judgment was entered on the verdict. Defendant has appealed from the judgment, and assigns the ruling of the trial court on his motion for a new trial as error. The motion for a new trial was based upon (1) the insufficiency of the evidence to justify the verdict; (2) the refusal of the trial court to direct a verdict for defendant; (3) error in the court's charge to the jury; (4) alleged errors in admitting and excluding evidence.
It is an undisputed fact that the books in question, as delivered to the defendant, did not fully comply with the description set out in the subscription contract, in this: that there were but 495 vignette portraits, whereasthe contract stated there would be 700. The defendant based his motion to direct a verdict in his favor, and his claim that the evidence was insufficient to justify the verdict upon the plaintiff's failure to fully comply with the contract. The defendant's contention is that, inasmuch as the books delivered did not fully comply with the description contained in the subscription contract, plaintiff had entirely failed to establish a cause of action. This contention is without merit. It is true, the defendant was under no legal obligation to accept books which did not fulfill the conditions of the contract. He could have refused to receive them, and could then have maintained an action for breach of the contract, but he did not pursue that course. On the contrary, he elected to retain the books, and still retains them. By so doing he affirmed the contract. After such acceptance his sole remedy (conceding, merely for the purpose of this opinion, that any remedy survived his acceptance) was to recover damages for the breach of the contract. 2 Mechem, Sales, §§ 1154, 1209, 1220, 1391-1393, and cases cited; Benj. Sales, §§ 895, 896.
The instruction of which defendant complains is as follows: “If you believe from the evidence that the plaintiff furnished these books in substantial...
To continue reading
Request your trial
-
Reuter v. Olson, 7303
...collision. A party cannot complain of the giving of instructions on an issue upon which the jury found in his favor. International Soc. v. Hildreth, 11 N.D. 262, 90 N.W. 70. Plaintiff's sixth specification of error is that the trial court erred in prefacing one of his instructions with the ......