Messenger v. Woge

• Decision Date: 10 October 1904
• Citation: 78 P. 314,20 Colo.App. 275
• Parties: MESSENGER v. WOGE.
• Court: Colorado Court of Appeals

78 P. 314

20 Colo.App. 275

MESSENGER v. WOGE.

Court of Appeals of Colorado

October 10, 1904

Appeal from District Court, Prowers County.

Action by Kemron E. Messenger against Ole A. Woge. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Goodale & Hillyer, John R. Smith, and George A.H. Fraser, for appellant.

O.G Hess and W.L. Merrell, for appellee.

THOMSON P.J.

The appellant brought this suit against the appellee to recover the price of goods alleged to have been sold and delivered by the plaintiff to the defendant on the 16th day of July, 1900. The defendant answered, admitting the sale to him by the plaintiff of the articles he enumerated in the complaint, and his failure to pay for them, or any of them, but averring that the plaintiff sold the property as the agent of the Aultman Company, a corporation, and had himself no interest in the subject-matter of the suit. The answer also stated that the defendant permitted the delivery to him by the plaintiff of the property in question, which consisted of a second-hand threshing machine and its accessories, but which the plaintiff represented and guarantied to be in good order and condition, and capable of giving complete satisfaction to the defendant in every respect, to be by him tried and tested by use, under an agreement that if upon trial the machine should fulfill the representations and guaranties of the plaintiff, the defendant would pay the plaintiff the sum of $1,400 in installments, none of which were due when the suit was brought; that the machine, after its delivery, was tried and tested by the defendant, and found to be in bad condition, and wholly unfit for use; that defendant thereupon notified the plaintiff that it was unsatisfactory, and that he declined to keep it. Plaintiff by his amended replication, denied that in the transaction with the defendant he acted as the agent of the Aultman Company, or that the Aultman Company had any interest whatever in the property; and denied that the machinery was delivered to the defendant for trial. The replication further alleged that at the time of the sale the plaintiff filled out a printed blank form used by the Aultman Company in its business of selling farm machinery, which printed form was simply a proposal to purchase by one desiring farm machinery directed to the company, and contained the company's forms of warranty and other necessary details, and presented the blank so filled to the defendant for his signature explaining that the plaintiff was the owner of the property, and that the Aultman Company was in no manner concerned in it; and that the printed form as filled out was understood and agreed by both parties to be simply a memorandum of the terms of the sale and of the plaintiff's warranties. This paper is set out in full in the replication. As appears from it, the terms of sale, aside from the warranties, were the notes of the defendant as follows: One for $300, due August 10, 1900; one for $300, due September 10, 1900; one for $300, due October 10, 1900; and the last for $500, due December 10, 1900--all to be secured by chattel mortgage on the machinery and on 70 acres of growing wheat. The printed form contained a provision that it was subject to the acceptance and approval of the company at its home office, and that, when accepted and approved by it, the proposition or order should become a binding contract. It was signed by the defendant, but it was never approved or accepted by the Aultman Company. The machinery was delivered to the defendant, but he refused to execute the notes or mortgage. Before entering upon the trial the defendant objected to the introduction of any testimony by the plaintiff, on the grounds that the complaint did not state facts sufficient to constitute a cause of action, and that the pleadings showed upon their face that the plaintiff was not entitled to recover. The motion was overruled, and the plaintiff testified to the sale and delivery of the property to the defendant at the stipulated price of $1,400; the agreement of the defendant to secure the payment of the money by his four notes and a mortgage, as stated above; and his refusal, after delivery, to execute the notes or mortgage. Respecting the Aultman blank the witness testified that, after the details had been agreed upon, he suggested that, to avoid a misunderstanding, a memorandum of the terms of sale had better be made; that the trade was made on or near the public road; and that he took from his pocket and filled out the Aultman blank, which was the only thing he had on which to write the memorandum, explaining that he was himself the owner of the thresher, and that the notes and mortgage were to run to him. At the close of the plaintiff's case the defendant moved for...