McCormick Harvesting Machine Company v. McNicholas

• Decision Date: 07 December 1896
• Docket Number: 10,265--(103)
• Citation: 69 N.W. 36,66 Minn. 384
• Parties: McCORMICK HARVESTING MACHINE COMPANY v. P. T. McNICHOLAS
• Court: Minnesota Supreme Court

69 N.W. 36

66 Minn. 384

McCORMICK HARVESTING MACHINE COMPANY v. P. T. McNICHOLAS

Nos. 10,265--(103)

Supreme Court of Minnesota

December 7, 1896

Appeal by plaintiff from a judgment of the district court for Meeker county, in favor of defendant, after a trial before Powers J., and a jury. Affirmed.

Judgment affirmed.

Brown & Buffington, for appellant.

Peterson & Foster, for respondent.

OPINION

START C. J.

This is an action on a promissory note for $ 40 given, with others, in payment of the purchase price of a harvester and binder sold by plaintiff to defendant. The answer admitted the note, and set up a counterclaim for damages arising from a breach of warranty of the machine. Verdict and judgment for $ 12.20 in favor of the defendant. The plaintiff appealed from the judgment.

The first assignment of error is to the effect that the trial court erred in refusing to instruct the jury to return a verdict for the plaintiff for the amount of the note. The second one is "that the court erred in holding that the plaintiff had waived a return of the machine." Both may be considered together, as each involves an examination of the contract of warranty and the evidence. The original printed warranty was as follows:

"These machines are all warranted to be well made, of good material and durable with proper care. If upon one day's trial the machine should not work well the purchaser shall give immediate notice to said McCormick Harvesting Machine Company, or their agent, and allow time to send a person to put it in order. If it cannot then be made to work well, the purchaser shall return it at once to the agent of whom he received it, and his payment (if any has been made) will be refunded. Continuous use of the machine, or use at intervals through harvest season, shall be deemed an acceptance of the machine by the undersigned."

At the time of the sale, and as a part of the warranty, the agent making the sale indorsed upon the back of it the following written agreement: "Said company agrees to see said harvester to do its work and all fixtures free of charge the first year."

There was no claim made by the defendant that the machine was not well made, of good material, and durable, with proper care but the claim was that, by reason of its defective construction (the precise defect does not appear from the evidence), the binder attachment would clog, and could not be made to work, and was worthless. The agent who sold the machine saw it work the first season, and testified "that it did not work very good; * * * it kept clogging right along." The evidence is practically undisputed that there was a breach of the warranty in this respect during the first harvest after the machine was purchased; that it would not work; that the plaintiff had notice of the defects, and its agent promised to send an expert to remedy them. It was not done, but the defendant never returned the machine.

It is also undisputed that the defendant refused to give his notes for the machine, and thereupon, and in November, 1893, the parties entered into an agreement whereby the defendant gave his notes, antedated September 1, 1892, for the purchase price of the machine. The testimony of the defendant was to the effect that he gave the notes upon the consideration and condition that the plaintiff would make the binder do good work, and that such was the agreement. The agent of the plaintiff with whom this subsequent arrangement was made, admitted and stated in his testimony that the defendant told him that he had trouble with the binder, and that he did not want to settle for it; that he (the agent) told him that, if there was any...