Minneapolis Threshing Mach. Co. v. Hocking

• Citation: 209 N.W. 996,54 N.D. 559
• Decision Date: 14 August 1926
• Docket Number: No. 4988.,4988.
• Parties: MINNEAPOLIS THRESHING MACH. CO. v. HOCKING.
• Court: United States State Supreme Court of North Dakota

54 N.D. 559

209 N.W. 996

MINNEAPOLIS THRESHING MACH. CO.

v.HOCKING.

No. 4988.

Supreme Court of North Dakota.

March 12, 1926.

Rehearing Denied Aug. 14, 1926.

Syllabus by the Court.

Neither indifference nor carelessness in signing the same is sufficient to absolve a party from the obligations of a written contract voluntarily signed by him.

A contract involving a legitimate subject-matter, the terms of which do not inherently tend to be subversive of the public good or contrary to good morals, will not, merely because its terms are harsh as to one of the parties, be declared void and unenforceable as contrary to public policy.

Chapter 202, Laws 1917 (Uniform Sales Act), is not intended to be a restriction upon the rights of parties to contract; rather it is a statement of the rules applicable in the construction of such contracts as they may make. It does not prohibit the inclusion of any lawful term that the parties may desire in a contract of sale nor avoid any lawful term or provision that may be thus mutually agreed upon.

The parties to a written contract of sale may exclude and negative all implied warranties which otherwise would arise and be available under the provisions of the Uniform Sales Act.

A written contract of sale of threshing machinery must be construed as though chapter 238, Laws 1919, were incorporated into and made a part of its terms and provisions, and in case of any conflict between the writing and the statute, the latter will prevail.

Chapter 238, Laws 1919, when applied to a contract of sale of machinery, gives the purchaser the right to rescind within a reasonable time after discovery of such unfitness, on notice and in the manner therein prescribed, when the machinery is unfit for the purpose for which it was purchased. But it does not operate to otherwise extend the authority of agents of the seller beyond that which they would be held to possess were the statute not in force.

The record in the instant case examined, and held that there was no rescission of the contract of sale within a reasonable time after discovery of the alleged unfitness of the machinery for the purpose for which it was purchased.

Appeal from District Court, Ramsey County; A. G. Burr, Judge.

Suit by the Minneapolis Threshing Machine Company against W. E. Hocking to foreclose a chattel mortgage. Judgment for defendant, and plaintiff appeals. Reversed, and judgment ordered for plaintiff.Cuthbert & Adamson, of Devils Lake, for appellant.

Traynor & Traynor, of Devils Lake, for respondent.

NUESSLE, J.

This action was brought to foreclose a chattel mortgage given to secure $1,925, the purchase price of certain threshingmachinery consisting of a separator, feeder, weigher, and wind stacker. The indebtedness was represented by two notes: One for $300, given for the stacker, and one for $1,625, the balance of the purchase price. The stacker note was paid in 1921, and plaintiff seeks to satisfy the second note by this foreclosure.

The complaint is the ordinary complaint in foreclosure. The defendant, in his answer, admits the giving of the notes and mortgage, and alleges that they were given for the purchase price of threshing machinery, that such machinery was sold under warranty, that the warranty failed, and therefore there was failure of the consideration, and that he had rescinded the contract therefor. Defendant further counterclaimed for that part of the purchase price paid by him and for damages arising by reason of the breach of warranty. The plaintiff replying pleaded the terms of the written contract under which the sale was made, and the noncompliance with the same by the defendant in that he failed to give notice of the defects claimed, that he continued to retain and use the machinery after he became aware of such alleged defects, and that he did not return or offer to return the same. Trial was had to the court. The court found for the defendant, dismissed the foreclosure action, and ordered judgment in defendant's favor on the counterclaim. Judgment was entered accordingly. Plaintiff appeals therefrom to this court and asks for a trial de novo.

The plaintiff is a Minnesota corporation engaged in the business of manufacturing and selling threshing machinery. Its general agent for the northern part of North Dakota was one Wood, whose office was at Grand Forks. The defendant is a farmer and business man residing at Devils Lake. In August, 1921, the defendant ordered the machinery in question by written order given to one Swingseth, a solicitor for the plaintiff. The order describing the machinery stipulated that the separator should be “fitted for 5-ton Holt power, speed 1050, with 12? pulley.” The order, among others, contained the following provisions:

“The purchaser expressly agrees that this order is taken and given subject to approval and acceptance, or rejection, by the company at its home office at West Minneapolis, Hopkins, Minnesota, notice of which acceptance is hereby waived by the purchaser. If this order is accepted by the company, then it is mutually agreed between the purchaser and the company that each said machine, attachment or article is ordered, purchased and sold subject to and upon the following conditions and agreements and upon none others, either express or implied, than as follows to wit:

1. It is agreed that no dealer, branchhouse manager, agent or any other employee or representative of the company (except an officer of the company, and then only in writing) has any power or authority to sell any machinery of the said company, except to take orders therefor upon this printed blank form, without erasure, interlineation, or change of any of the printed conditions or agreements hereof, and submitting the same to the company at West Minneapolis, Hopkins, Minnesota, for its approval and acceptance or rejection, and that there are no representations, agreements, obligations or conditions express or implied, statutory or otherwise, relating to the subject matter hereof, other than herein contained, and that this agreement is the sole contract and comprises all agreements between the parties hereto with reference to said machinery.

2. It is mutually agreed and understood by and between the parties hereto that this order and contract is separable and divisible, and that the machinery is hereby ordered, purchased, and sold each at a separate and agreed fixed price, which is included in the aggregate sum of all the machinery so ordered, purchased and sold, and that said machinery is sold subject to the following express separate, special warranties and conditions hereinafter mentioned; all statutory or implied warranties except as to title are hereby expressly negatived and excluded:

First. The said machinery is warranted to be in good working order at the time of delivery, and will well perform the work for which it is intended if properly used and operated. It is agreed that in case there should be any real or apparent failure of either of said machines, attachments, articles or component parts thereof, to fulfill the warranties aforesaid, the purchaser shall give written notice of the defect complained of, describing the same and stating when it was discovered, to the company at its said home office, by registered letter posted not more than seven days after such discovery, and in any event not more than ten days after it is first used by the purchaser, and the purchaser shall forthwith discontinue the use thereof, pending the remedying of such defect, and shall allow said company a reasonable time to send a man to remedy the defect, if any exists. The purchaser agrees to render friendly assistance to the company and furnish adequate means for operating and testing the machinery, and in case the defect is in the machinery or any of its parts and the same is not remedied, the particular part, machine, attachment, or article which fails to conform to the warranties aforesaid must be returned by the purchaser in as good order as when received, except for ordinary wear, to the place where it was received, and the purchaser shall thereupon immediately notify the company of such return by registered letter addressed to its said home office, and the company may thereupon at its option either replace the same or it may elect to rescind this contract so far as such machine, attachment, or article is concerned and in case any machine, attachment or article is returned by the purchaser and not replaced by the company, then the company shall return to the purchaser the moneys, notes, and property given therefor, or credit on his notes pro rata the agreed price of said machine, attachment, or article so returned, and no further claim shall be made upon the company. The continued use or possession of the machine, part, or attachment after a period of ten days from the date it is first used or the use and possession thereof after an attempt has been made and completed to remedy defects therein or the failure to give the notices herein required, as and within the time required, or to return the machine, part or attachment as herein provided, shall be deemed conclusive evidence that the warranty is fulfilled.

Second. That all the machinery mentioned is warranted to be well made, of good material, and durable with proper care, and the company agrees that if any separate, distinct, individual parts making up the whole part (except belts, hose, batteries, spark plugs, magnetos, coils, oilers, and oilpipes, which are not warranted), proves defective in consequence of a latent defect in the material or workmanship, at any time within six months after the date of delivery of the said machinery, and if such part is within seven months from such date of delivery returned to the company, at its factory or at its nearest branch house, freight prepaid, and if the same is found by the company, or its branch-house manager to be defective, by reason of any such latent defects, it will be replaced...