Minn. Thresher Manuf'g Co. v. Lincoln

• Decision Date: 13 December 1894
• Citation: 4 N.D. 410,61 N.W. 145
• Parties: MINNESOTA THRESHER MANUF'G CO. v. LINCOLN et al.
• Court: North Dakota Supreme Court

4 N.D. 410

61 N.W. 145

MINNESOTA THRESHER MANUF'G CO.

v.LINCOLN et al.

Supreme Court of North Dakota.

Dec. 13, 1894.

Syllabus by the Court.

1. The note sued on was given for the purchase price of a separator sold by the plaintiff to the defendants upon the following contract of sale: “The buyer shall have three days after it is first started to ascertain whether said machinery is or is not as warranted and represented. If then it is not, he shall at once discontinue use of it, and state full particulars wherein it fails, by letter mailed at once to the seller at Stillwater, Minn., and wait until seller gets a man there to right it. The buyer shall render the man sent necessary and friendly assistance, and, after he is through, shall at once give the machinery a fair trial of two days, and, whatever part of the machine is not as warranted or represented, he shall then return such part to where he got it, and the seller may either furnish another part, or may require the return by the buyer of the remainder of such machine, and then furnish another in its place, or refund what he received for it. If, however, the trouble arose from the improper handling of the machine, the buyer shall pay the costs of thus righting it. The use of all or part of said machinery after said two days' trial shall be conclusive evidence that it is as warranted and represented, and shall estop the buyer from all defenses, on any ground, to the payment therefor. No claims, counterclaims, demands, or offsets shall ever be made or maintained by the buyer on account of delays, imperfect construction, or any cause whatever, except as provided herein. The terms and conditions hereof shall not be waived, altered, or changed without a special written agreement signed by said thresher company or their specially authorized agent therefor at Stillwater, Minn.” The answer alleged a breach of the warranty, and that the separator was worthless as a separator; also, set out a counterclaim for $1,000 for the value of grain wasted by the separator. At the close of the evidence, on motion of plaintiff's counsel, the district court directed a verdict for plaintiff for the amount due on the note. The grounds of the motion were, in substance, that the testimony of the defendants showed that the defendants had by their conduct elected to waive any and all claims for damages, or by way of counterclaim for breach of the warranty. Held, that the only question which the trial could properly consider in passing upon the question presented by the motion is whether the testimony did or did not show such waiver. The attention of the trial court and opposite counsel having been directed by the terms of the motion to the one matter of waiver, no other question will be considered in reviewing the ruling upon the motion. Bank v. Laughlin (N. D.) 61 N. W. 473.

2. It appeared in evidence that the defendants, upon a trial thereof, found that the separator wasted grain, and thereupon sent a certain notice of such defect by mail, addressed to the plaintiff at Fargo, N. D. Pursuant to such notice, three several experts came to defendants' premises, one after another, claiming to represent the plaintiff. The second expert, after working upon the machine, gave it up, and went away stating that he could not remedy the defect. The third which came, after working all night upon the separator, went away without promising or suggesting that he would return, and without curing the defect. No attempt was afterwards made by any one to remedy the defect in the machine, nor did the plaintiff ever agree to send another expert, or otherwise attempt, or agree to attempt, to fix the separator. Held (conceding, without deciding, that the notice of defects sent by defendant was sufficient, and that the experts were sent by the plaintiff in response to the notice), that such evidence showed a failure on the part of the plaintiff to remedy the defect, and that under the contract, upon such failure, the defendants were bound to return the machine; and not having at any time returned the machine, as required to do, they have waived any claim arising upon a breach of said warranty. The motion upon this evidence was properly granted.

3. The trial court having by its order set aside such verdict upon the ground that the motion to direct a verdict was not properly granted, Held, that the order setting aside the verdict and granting a new trial is erroneous.

Appeal from district court, Cass county, William B. McConnell, Judge.

Action by the Minnesota Thresher Manufacturing Company against W. H. Lincoln and others. A verdict for plaintiff was directed, and, from an order granting defendants a new trial, plaintiff appeals. Reversed.

John G. Green, for appellant. H. C. Southard, for respondents.

WALLIN, J.

The plaintiff bases this action upon defendants' promissory note for $470. Defendants answered the complaint, admitting the execution and delivery of the note, and that it was unpaid; and, further answering, allege that the note was given for the purchase price of a separator sold by plaintiff to defendants with a warranty, that there was a breach of such warranty, and that the separator was of no value whatever as a separator. Defendants' answer also embodied a counterclaim, as follows: “That on or about the 1st day of September, 1891, they bought from plaintiff the certain separator hereinbefore referred to; that plaintiff represented and warranted that said separator was as good as any separator made, and would do as good work as any; that, relying wholly on said representations and warranty, defendants bought said machine; that defendants immediately upon commencing to thresh the grain upon their farm in Cass county, found that said machine was not as good, and would not do as good work, as other machines; that it was a poor machine, and that it wasted grain in threshing; that defendants immediately notified plaintiff of the defect, and that an expert was sent by the plaintiff to remedy the defect, but that the machine was not improved thereby; that defendants again notified plaintiff of the fact that it could not be made to work satisfactorily, and again an expert was sent out, but that said machine was not improved, and a third time an expert undertook to fix said machine; that defendants were unable to get another separator at that time, and were obliged to finish the threshing which they were engaged upon with it; that during the time defendants were obliged to use said machine, as aforesaid, it wasted wheat in excess of that which any other separator would waste, and in excess of what a good machine would waste, to the value of $1,000.00. Wherefore defendants demand judgment (1) that said note described in said complaint be canceled; (2) that they have judgment against said plaintiff for the sum of $1,000.00, with interest from the date hereof, and the costs and disbursements of this action.” Plaintiff served a reply denying the allegations of the answer set up as a counterclaim. There was a jury trial, and at the close of the testimony, upon the motion of counsel for plaintiff, the trial court directed a verdict for the plaintiff for the amount of the note, with interest. A motion for a new trial was made, chiefly upon the ground that the court erred in directing a verdict for the plaintiff. The trial court, by its order, vacated the verdict, and granted the application for a new trial, and the plaintiff appeals from such order.

The only error assigned in this court, which we shall deem it necessary to notice, is “that the court erred in granting defendants' motion for a new trial.” At the trial, after introducing the note in evidence, the plaintiff rested its case, and in rebuttal put in evidence the contract of sale embracing the warranty of the separator, the material parts of which are as follows: “It is agreed that the only warranty or representations binding upon the seller are as follows: (1) That said machinery is well built, and, with proper management, capable of doing well the work for which it was intended, and the engine of developing its rated power, conditional, however, that the buyer shall set up, start, and operate it in a proper and skillful manner, and without changing the original construction or any part of it. The buyer shall have three days after it is first started to ascertain whether said machinery is or is not as warranted and represented. If then it is not, he shall at once discontinue use of it, and state full particulars wherein it fails, by letter mailed at once to the seller at Stillwater, Minn., and wait until seller gets a man there to right it. The buyer shall render the man sent necessary and friendly assistance, and, after he is through, shall at once give the machinery a fair trial of two days, and, whatever part of the machine is not as warranted or represented, he shall then return such part where he got it, and the seller may either furnish another part, or may require the return by the buyer of the remainder of such machine, and then furnish another in its place, or refund what he received for it. If, however, the trouble arose from the improper handling of the machine, the buyer shall pay the costs of thus righting it. The use of all or part of said machinery after said two days' trial shall be conclusive evidence that it is as warranted and represented, and shall estop the buyer from all defenses, on any ground, to the payment therefor. No claims, counterclaims, demands, or offsets shall ever be made or maintained by the buyer on account of delays, imperfect construction, or any cause whatever, except as provided herein. The terms and conditions hereof shall not be waived, altered, or changed without a special written agreement signed by said thresher company or their specially authorized agent therefor at Stillwater, Minn.” It further appeared from plaintiff's testimony that the machine was sold through the firm of Hughes &...