Minneapolis Threshing Mach. Co. v. Huncovsky
| Decision Date | 06 December 1924 |
| Docket Number | 22635 |
| Citation | 202 N.W. 280,52 N.D. 112 |
| Court | North Dakota Supreme Court |
Rehearing denied December 31, 1924.
Appeal from the District Court of Morton County, North Dakota Berry, J.
Remanded for further proceedings.
Case remanded. Neither side recovered costs of this appeal.
Lawrence Murphy & Niles, for appellant.
Failure to read contract as affecting the right to relief therefrom on the ground of fraud of other party; as a general rule ignorance of the contents of a contract, due to failure to read it, affords no ground for relief therefrom. Pratt v Metzger (Ark.) 95 S.W. 451; Quinby v. Shearer, 56 Minn. 534, 58 N.W. 155; Sanborn v. Sanborn, 104 Mich. 180, 62 N.W. 371; Griffin v. Roanoke Railroad & Lbr. Co. 6 L.R.A. (N.S.) 463.
"It is well settled that a person who signs an instrument without reading it, when he has the opportunity to read it and can read, cannot avoid the effect of his signature merely because he was not informed of its contents." 12 R. C. L. 386.
"Proof of fraud must be clear and convincing, and be evidenced by facts which are inconsistent with an honest purpose." Reitsch v. John McCarthy, 35 N.D. 555; Kvello v. Taylor, 5 N.D. 79.
"Where an order for goods is received and transmitted to the seller by the latter's traveling salesman, who had no actual or ostensible authority to contract for sale, but only to receive and transmit the orders of customers, there is no sale until the order is received and accepted by the seller." Bowlin Liquor v. Beaudoin, 15 N.D. 557.
Norton & Kelsch, for respondent.
Swan v. Great Northern R. Co. 168 N.W. 660.
"An adequate legal consideration is essential to the support of all release." 34 Cyc. 1049.
"The authorities are uniform that a release must be founded on a valuable consideration and that the plea is not good unless the consideration is alleged." King v. Atlantic C. L. R. Co. 48 L.R.A. 454 and authorities cited.
"That where there is total failure of the consideration for a release it may be disregarded for it constituted no defense to a suit brought on the original cause of action." 34 Cyc. 1054.
King v. Atlantic C. L. R. Co. 48 L.R.A. 454.
"Trial courts are vested with a broad discretion in permitting or refusing to permit parties to reopen their case for the purpose of introducing further proof, and their rulings on such motions will not be disturbed, where there is not a clear abuse in the exercise of such discretion." Fried v. Olsen, 22 N.D. 382.
Plaintiff brought this action to foreclose a chattel mortgage covering a tractor and a set of plows. The case was tried to the court. Two questions were submitted to a jury for an advisory verdict. Upon the answers of the jury and the findings and conclusions of the trial court, a judgment was entered in favor of the defendant for the sum of $ 782.00 on his counterclaim based upon an alleged breach of warranty and deceit by reason of false representations alleged to have been the inducing cause of defendant's purchase of the tractor and the execution of the note and mortgage. Plaintiff appeals from the judgment.
This is the second time that this action has been before this court. The opinion on the former appeal is reported in 49 N.D. 1086, 194 N.W. 830. In that opinion the facts are fully stated; they are not materially different now. We do not deem it necessary to restate the facts, but refer to the former opinion for a statement thereof, supplemented, as a discussion of the various points may require, by reference to the testimony upon the second trial.
One Tibesar, who was the agent of the plaintiff when the deal was made, did not testify at the second trial. The testimony of the defendant Huncovsky is, therefore, wholly undisputed. In addition to the testimony given by this witness as it appears in the former opinion, he stated that when the order was signed by him on the 17th of July, 1919, the agent Tibesar said that the tractor would be put in "first class shape" and that that was what the parties meant by the clause inserted in the order "as soon as repaired." His testimony discloses the fact that no work was done on the tractor until some time in the spring of 1920 and that failure to repair it was apparently the principal reason why it was not delivered in 1919. When he signed Exhibit 4 on April 24, 1920, to which reference is made in the former opinion in this case, he testified that he had been in Bismarck, at the shops of the agent Tibesar, had seen the tractor and that it was still out of repair; that they were then working on it and had not completed the work when he left the shop, that when he was all ready to board the train, Tibesar appeared and insisted that he sign Exhibit 4; that defendant had no time to read it because he desired to catch the train; that the agent Tibesar told him that he wanted him to sign this so that he (Tibesar) would not have to go out if the tractor did not work, as he (Tibesar) expected to be busy with his crops; that defendant then asked: "Are you afraid the tractor won't work?" Tibesar answered "No, the tractor is in good shape;" defendant then said: "I will take your word for it," and signed the exhibit without reading it, because the train men were shouting "all aboard" and the train was about to leave. Upon reading the instrument on the train, defendant found that he therein stated that he had fully examined the property prior to delivery, knew its quality and accepted the same without any warranty whatsoever; and that the property had been sold and delivered to him on the 24th day of April, 1920, the date when this instrument was signed. In this connection it should be noted that the instrument purports to recite facts contrary to the truth. The tractor was not delivered on that day and was not in fact shipped until the 27th of April--three days later; the deal was made the preceding July, as the record shows without dispute, and the note and mortgage signed the following January, and the defendant did not accept the tractor as it was, but the agent was then, on April 24, working on it, repairing and overhauling it, and apparently did not complete that work for some days thereafter. When the agent presented Exhibit 4 to defendant at the railway station, reciting that the tractor was then "in good shape," the agent knew that the tractor was not in fact in running order; his men were working on the machine at that time.
The contentions of the plaintiff are that the machine was sold without warranty and plaintiff relies principally upon the instrument executed on April 24, 1920, in support of that contention. It is also contended that the proof of damages is insufficient; that the court erroneously received certain exhibits, that is, notices of attempted rescission of the order made after the defendant discovered that the tractor was not usable; that costs of the first trial were erroneously taxed against the plaintiff; that it was error to permit defendant to prove, as a part of the damages, that he paid freight charges on the machine, purchased repairs for it and expended money for labor in attempting to make it work. Other assignments are made, which we deem it unnecessary to discuss because of a minor character.
At the conclusion of the testimony, counsel for the parties stipulated that two questions be submitted to the jury, as follows: 1. "What would the tractor have been worth had it been generally overhauled and repaired at the time of its delivery, as represented, if such representations were made?" 2. "What was the actual value of the tractor in the condition it was in at the time of its delivery to the defendant?" The following appears in the record: It is further stipulated that the court make findings of fact upon all of the other material issues of fact in controversy in this action and the usual conclusions of law. ...
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