Koester v. Northwestern Port Huron Co.

• Citation: 24 S.D. 546,124 N.W. 740
• Parties: O. H. KOESTER, Plaintiff and respondent, v. NORTHWESTERN PORT HURON COMPANY, Defendant and appellant.
• Decision Date: 19 January 1910
• Court: Supreme Court of South Dakota

24 S.D. 546, 124 N.W. 740 (1910)

O. H. KOESTER, Plaintiff and respondent v NORTHWESTERN PORT HURON COMPANY,

Defendant and appellant

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. Joseph W. Jones, Judge

Affirmed

Dodge & Tautges, Winsor & McNaughten

Attorneys for appellant.

Bates & Parliman

Attorneys for respondent.

Opinion filed Jan. 19, 1910

SMITH. J.

The plaintiff in the court below, who is the respondent in this court, by his amended complaint alleges that on or about the 12th day of June, 1905, defendant sold to plaintiff a steam threshing outfit, consisting of a separator and steam traction engine, together with various accessories, appendages, and tools belonging to said machinery, for the sum of $3,800, warranted said machinery to be first-class in material, workmanship, and finish, and that it would do its work as well and as successfully as any threshing machine manufactured, and that the defendant promised and agreed to and with this plaintiff that if the said machinery was not, and did not work, as above warranted, the plaintiff should return the same to the defendant at Humboldt, S. D., and that the defendant would then take back said machinery and surrender to plaintiff and cancel the notes and mortgages given by plaintiff to the defendant for said machinery; that plaintiff relied upon the said warranty and agreement, and was thereby induced to buy said threshing machine and pay for the same; that thereafter, and on the 12th day of June, 1905, relying upon said warranty and agreement, plaintiff paid defendant for said machinery by executing and delivering to said defendant his three promissory notes, in the sum of $3,800, and bearing interest at the rate of 8 per cent. per annum from date until maturity, secured by chattel mortgage on all the property put chased by him as aforesaid, and by his certain mortgage on real estate in said county, then owned by him; that the said machinery did not fulfill nor comply with the conditions of said warranty; that it was not first-class in material, workmanship, and finish; that it did not do its work well nor as satisfactory as any threshing machinery ever manufactured. The plaintiff then sets out certain trials of said threshing machinery, and alleges the particulars in which the same is claimed to be imperfect and the defective manner in which the same operated; that, after said trials of said machinery, the plaintiff notified defendant of the said defects and of its failure to work in accordance with the conditions of said warranty, and that defendant failed to remedy said defects or cause said machinery to work in accordance with the said warranty; that thereafter, on or about August 30, 1905, and after the aforesaid test and failure of said machinery, and after defendant had failed to cause said machinery to work in accordance with said warranty, the defendant instructed plaintiff to return said machinery to defendant at Humboldt, in said county, the place were plaintiff received said machinery from said defendant. The plaintiff did thereupon return all the machinery to the said defendant at Humboldt on the 7th day of September, 1905, and notified defendant thereof. Plaintiff also, at said time, rescinded said contract of purchase, and notified defendant thereof. The plaintiff further alleges that in his attempt to use said machine he incurred certain expenses for labor, material, and other matters, and spent four weeks' time with his team, and demands judgment that the notes executed and delivered to plaintiff for said machinery be surrendered and canceled, and that the chattel and real estate mortgages executed to secure the same be canceled and discharged of record, and that he have and recover of the defendant the amount of his necessary expenses in attempting to make the machinery work according to the aforesaid warranty. The plaintiff also prays for such other and further relief as to the court may seem proper.

The defendant in its answer denies each and every allegation in the complaint, except as thereinafter admitted.

The defendant admits and alleges that on or about the 19th day of May, 1905, the plaintiff executed his written order to defendant for the identical articles of machinery described in the plaintiff's complaint, which were to be delivered to him only upon the conditions set forth in the said written order, to be mutually performed by the parties thereto at the times and in the manner therein specified; that on the 26th day of May, 1905, defendant accepted said order, and on or about said date delivered said machinery to plaintiff and plaintiff accepted the same, subject to the provisions and terms of said contract and not otherwise. Defendant also admits that the consideration for said machinery was as alleged by the plaintiff, and also admits the execution and delivery of the notes and mortgages above referred to. The answer then sets out the various warranties and conditions contained in the alleged order or contract, among others being that, if at the end of the first day's use the purchaser is unable to make said machinery operate well, that he shall give immediate notice by registered letter to the defendant company "stating particularly, what parts, and wherein the machinery fails to fulfill the said warranty"; that plaintiff commenced to use said machinery and the whole thereof on the 12th day of August, 1905, but did not give the defendant the notice required or any notice of the condition of said machinery until on or about September 8, 1905, and did not at any time point out to the defendant what parts and wherein the machinery failed to fulfill the warranty; that it was further provided in said contract

"that if the purchaser is not satisfied with said machine after it is put in order by a skilled workman sent to said machine, in response to aforesaid notice, then in order to obtain the benefit of these warranties, the purchaser shall, within three days thereafter, notify the ... defendant, at Minneapolis, Minn., by registered mail that he is not satisfied, and that a competitive trial is required;"

that plaintiff at all times failed to comply with said conditions; that it was provided in said contract and order

"that, if a competitive trial of this engine is made, the trial is to be made by three mechanical engineers, well known to be disinterested and reliable men. If a competitive trial of the other machinery ... covered by these warranties is made, the trial is to be judged by three disinterested farmers, etc., the purchaser to select one judge and the company to select another, the two so selected to select the third";

that plaintiff never served upon defendant a notice for a competitive trial and none was ever had, nor did plaintiff ever select a judge to engage therein; that the contract further provides,

"All these warranties ... shall he considered as fully satisfied unless the purchaser promptly gives the registered notice herein required, and it is expressly agreed that six days' retention from the first day's use of said machinery shall be conclusive evidence of the fulfillment of these warranties, ... and the plaintiff thereafter, should make no further claims on said company and that all implied warranties are expressly waived by purchaser;"

that it is further provided therein that,

"when approved and accepted, this order is a binding contract. It cannot be waived in any respect, except in writing over the signature of an officer of the company. Agents and salesmen are authorized to take orders only in accordance with special instructions and on the form furnished by the company, subject to approval as aforesaid. Agents, salesmen, and mechanical engineers have no agency power and are without authority to hind the company or release the purchaser by any contract or statement whatever, and it is expressly agreed that no act or statement of theirs shall expressly or impliedly waive the terms of the preceding conditions."

Defendant then alleges that the plaintiff wholly failed to comply with each and all of the conditions to be performed on his part, as set forth, in the time and manner therein required or at all. Defendant further alleges that each and every article of machinery furnished by it under said contract conformed to the representation therein set forth, and if the same failed to do work as represented therein, such failure was not due to defects in said machinery, but solely to the negligence, carelessness, and unskillfulness of the plaintiff, his agents, and servants. The defendant demands that the prayer of the complaint be denied. Appellant in the third, fourth, and fifth assignments of error contends that the court erred in receiving evidence and making findings of fact on issues not within the pleadings. The facts as found by the court are clearly within the issues presented by the allegations of the answer and the denial thereof interposed by operation of law.

The answer presents only defensive matter, and no formal reply thereto is required on the part of the plaintiff. The issues thus raised by the pleadings were duly tried upon special questions and answers submitted to a jury by the trial court, and thereafter the court duly made and filed its findings of fact an conclusions law in accordance with the special findings returned by said jury. The findings of fact made by the court sustained the allegations of defendant's answer as to the terms and conditions of the written contract or order. The remaining findings of fact, which are very voluminous, so far as they are pertinent to the question presented by the assignments of error, are in substance as follows: That plaintiff did not read the contract referred to in the court's findings before signing the same and was induced to sign said contract without reading the same by means of artifice practiced on him by the said F. L. Layton as follows: That...