McCormick Harvesting Mach. Co. v. Cochran

• Decision Date: 03 February 1887
• Citation: 31 N.W. 561,64 Mich. 636
• Court: Michigan Supreme Court
• Parties: MCCORMICK HARVESTING-MACHINE CO. v. COCHRAN.

31 N.W. 561

64 Mich. 636

MCCORMICK HARVESTING-MACHINE CO. v. COCHRAN.

Supreme Court of Michigan

February 3, 1887

Error to circuit court, St. Joseph county.

Wm. O. Pealer and Howard & Roos, for plaintiff in error, McCormick, etc.

Howell Carr & Barnard, for defendant in error, Cochran.

SHERWOOD J.

This was an action of assumpsit brought by the plaintiff in justice's court to recover the purchase price of a self-binding harvester. The defendant pleaded the general issue, with notice that defendant would show that the machine was warranted to him by the plaintiff, when purchased, to do first-class work, to do as good work as a machine owned by James Cochran, a brother of the defendant, who resided in the neighborhood, and to give perfect satisfaction to the defendant; that defendant was to have the privilege of trying the machine in doing his harvesting, and unless it complied with the warranty, and was satisfactory to the defendant, he was not to keep it, or be obliged to pay for it; and that the machine, when used, failed to perform as warranted, and was not satisfactory to the defendant. The defendant had judgment before the justice, and upon the trial at the circuit he again prevailed, and the plaintiff brings error.

A very large number of errors are assigned upon the proceedings had in the circuit. We shall not consider them seriatim. Eight were assigned upon rulings of the court on taking the testimony.

The defendant is a farmer residing near Three Rivers, in St Joseph county, and his brother James Cochran lived in the same neighborhood. Mr. Burrows was in the employ of the agents of the plaintiff at Three Rivers, and made sale of the machine to the defendant. He knew of James Cochran's machine. On the trial, to prove a breach of the warranty as laid by the defendant he was allowed to state that the machine in question did not do as good work as his brother James'. This was objected to, and the rulings upon this and several other similar statements are made the subject of plaintiff's first second, third, and fourth assignments of error.

We see no objection to these rulings. The testimony only tended to prove a breach of the warranty, as claimed by the defendant, and not positively denied by the plaintiff's agent. The comparison called for was one that any person could make who was accustomed to the use of harvesting-machines, and had seen the two work, and there was no question but that the witnesses in this case were qualified in that respect. It was not necessary that the wheat in which the machines were observed should have been of the same heft and height to make the testimony competent. Those were subjects for cross-examination, and for the consideration of the jury.

On rebuttal, the complainant offered to show that the McCormick was a good binder, and for that purpose asked the following question: "What do you say as to the McCormick being as good a binder as any in the market?" Objection to this question was properly sustained. The merits of the machine in question alone were material in this case.

While the defendant was using the machine in question in his wheat harvest, James McJury saw the manner in which it worked in going around the field once. He was sworn for the plaintiff. On his direct examination he said: "I am a farmer. I know something about binders. Father has one now--the McCormick. I was in the defendant's field once last harvest while he was harvesting. Saw the machine work. It was working well. I think it worked well." On cross-examination the witness stated: "Arthur Cochran was driving. My attention was not called to the working of the machine particularly." He was then asked by plaintiff's counsel: "Did the defendant, Mr. Cochran, or any of his boys, make any complaint that it was not working well?" Certainly what the boys might have said was both immaterial and hearsay; and, so far as the question related to the defendant, it was improper examination, as it does not appear any conversation whatever was had with him, and the most that could be claimed for it is that there was a probability, if the machine worked badly, defendant would have so said to the witness. The witness did not represent the plaintiff at the time, and it does not appear that he made known his business in the defendant's field, or that he was within speaking distance of the defendant, or any of his boys. We think, under these circumstances, so far as the testimony called for related to the defendant, it was clearly subject to the objection taken.

When the testimony closed, the plaintiff's counsel asked the court to charge the jury as follows:

"(1) In this case, the plaintiff has shown a sale of the machine at a fixed price, and a delivery of the same to defendant, and the plaintiff is entitled to recover unless you find a breach of the warranty which accompanied this sale; and the burden of proof is on the defendant to show the breach of the warranty.

"(2) The plaintiff claims that the warranty was that the machine would do good work. If you find this to be the warranty, then if the machine did do good work, or would have done good work if properly managed, or could have been easily fixed, so as to do good work, then the plaintiff should recover; and, if the machine did not work well, it was the duty of the defendant to notify Schoch & Griffiths, and give them an opportunity to remedy the defect, if they could; and, if he did not do so, the plaintiff is entitled to recover.

"(3) The defendant claims the warranty to be that the machine should do as good work as his brother James' machine, which was a Deering, with the same kind of a binder as the machine in question; and if you find the machine in question could, if properly managed, do as good work as his brother James' machine, then the plaintiff should recover; and it was the duty of defendant to notify plaintiff's agent if the machine did not do good work, so that it might be remedied.

"(4) The defendant testified that he kept the machine during the

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