McCormick Harvesting-Machine Co. v. Chesrown

• Decision Date: 22 December 1884
• Citation: 33 Minn. 32,21 N.W. 846
• Parties: MCCORMICK HARVESTING-MACHINE CO. v CHESROWN.
• Court: Minnesota Supreme Court

33 Minn. 32

21 N.W. 846

MCCORMICK HARVESTING-MACHINE CO.vCHESROWN.

Supreme Court of Minnesota.

Filed December 22, 1884.

Appeal from an order of the district court, Faribault county.

B. G. Reynolds and M. S. Wilkinson, for appellant, McCormick Harvesting-machine Co.

A. C. Dunn, for respondent, J. M. Chesrown.

BERRY, J.

The evidence shows that in August, 1880, the plaintiff agreed to furnish defendant “a cord-binder” in 1881, “guarantied to work satisfactorily.” The agreement was executory, and hence when the cord-binder was furnished defendant had the right, before finally accepting it, to make a trial of it, reasonable as respects both time and manner, and a right to reject it if it did not work satisfactorily, that is to say, satisfactorily to him. 2 Add. Cont. 942; Anson, Cont. 285; Poll. Cont. 466; Doane v. Dunham, 65 Ill. 512; Leake, Cont. 284. In case, upon reasonable trial, it did not work satisfactorily, it was not necessary for defendant to return it to plaintiff, in the absence of an express agreement to that effect. It was sufficient for him, within a reasonable time, to notify plaintiff in substance that it did not work satisfactorily, and that he declined to accept it. Gibson v. Vail, 53 Vt. 476; Doane v. Dunham, supra; Starr v. Torrey, 22 N. J. Law, 190; Smalley v. Hendrickson, 29 N. J. Law, 371; Lucy v. Mouflet, 5 Hurl. & N. 228; Grimoldby v. Wells, L. R. 10 C. P. 391; 2 Benj. Sales, (4th Amer. Ed. Corbin's,) §§ 978, 1348; Leake, Cont. 409, 827. Of course, the effect of the notice might be destroyed by continued use thereafter, such as would estop defendant from denying acceptance. The foregoing views are expressed partly with reference to a new trial and partly, also, in disposing of the present appeal.

Upon the matter of reasonable time as respects the trial of the binder and the notice to plaintiff that it did not work satisfactorily and was not accepted, the trial court finds that, after defendant had used the cord-binder three or four days, he notified plaintiff that it did not work satisfactorily, and to come and “fix it;” that plaintiff did, in a day or two thereafter, attempt to “fix it” and make it work satisfactorily, “but failed to do so; that plaintiff then requested the defendant to make further trial of the machine, and defendant did so for five or six days longer; and that defendant used and tried the machine in all 14 days.” It is also found that at the end of the 14 days “defendant notified the...