Murphy v. Russell & Co.

• Decision Date: 12 December 1901
• Citation: 8 Idaho 133,67 P. 421
• Court: Idaho Supreme Court
• Parties: MURPHY v. RUSSELL & CO

67 P. 421

8 Idaho 133

MURPHY v. RUSSELL & CO

Supreme Court of Idaho

December 12, 1901

CONSTRUCTION OF CONTRACT.-A threshing-machine outfit was sold by R. & Co. to M., upon a conditional warranty containing the following clause, to wit: "Continued possession or use of the machinery for six days shall be conclusive evidence that the warranty is fulfilled to the full satisfaction of the undersigned [the purchaser], who agrees thereafter to make no further claim on R. & Co., under the warranty." Said contract also provided that written notice of defects must be given to R. & Co. Held, that if M. had possession of said machine for more than six days without giving the notice required by said contract, that he waived all claims for damages on R. & Co. under said warranty. The failure to give the stipulated notice was an acceptance of the machine, and a waiver of damages for defects.

CONTRACT.-The law that requires the seller to keep and perform his part of the contract equally requires the purchaser to perform his part thereof.

WITHDRAWAL OF CROSS-COMPLAINT AND FILING OF AMENDED DEMURRER.-The provisions of section 4229 of the Revised Statutes vests a very large discretionary power in the trial court, and is sufficient on a proper showing, to authorize the court to permit the withdrawal of an amended cross-complaint, and file an amended demurrer to the complaint.

PROCEDURE UNDER SECTION 3397 OF THE REVISED STATUTES.-Under the provisions of section 3397 of the Revised Statutes, the action is commenced by filing a complaint in substantial compliance with the provisions of section 4168 of the Revised Statutes, and the subsequent pleadings must substantially conform to the requirements of the provisions of the Code of Civil Procedure for pleadings in civil actions.

SUBPOENA DUCES TECUM.-A subpoena duces tecum is the usual means of compelling the production of papers to be used in the trial of a case.

INCONSISTENT DEFENSES.-Under the provision of section 4187 of the Revised Statutes, the defendant is permitted to set forth in his answer as many defenses and counterclaims as he may have, and such defenses may be, to a certain extent, inconsistent with each other, but must not be so inconsistent that the proof of one would necessarily disprove the other. This action, in reality, is intended as a defense against the foreclosure of a chattel mortgage.

MOTION TO STRIKE OR TO COMPEL ELECTION.-In a case of inconsistent causes of action, or defenses, a motion to strike or to require defendant to elect is the proper procedure.

(Syllabus by the court.)

APPEAL from District Court, Nez Perces County.

Affirmed, with costs.

Ben. F Tweedy, for Appellant.

There can be no rescission of a contract of sale for a breach of a warranty when there is no fraud. (Pierce v. Wilson, 34 Ala. 596; Foster v. Gressett, 29 Ala. 393; Blen v. Bear River etc. Water Min. Co., 20 Cal. 602 81 Am. Dec. 132; Soper v. Sevens, 14 Me. 133; Fairis v. Ware, 60 Me. 482; Perkins v Bailey, 89 Mass. 61, 96 Am. Dec. 689; Hoopes v. Strasburger, 37 Md. 390, 11 Am. Rep. 538; Poor v. Woodburn, 25 Vt. 234; Mauchan v. Noys, 52 N.H. 232; Kinney v. Kierman, 2 Lans. 492; Haitze v. Collins, 46 Pa. 268; Short v. Stevenson, 63 Pa. 95; Downer v. Smith, 32 Vt. 1, 76 Am. Dec. 148; Gates v. Bliss, 43 Vt. 299; 1 Wheaton on Contracts, sec. 282; Milliken v. Skillings, 89 Me. 180, 36 A. 17; Rogers v. Hanson, 35 Iowa 283; Wright v. Howell, 35 Iowa 288; McCormick Harvesting Machine Co. v. Cochran, 64 Mich. 636, 31 N.W. 561.) When a seller fails to remedy defects in a contract requiring it, the contract of sale for the breach of the warranty may be rescinded. (Seiberling v. Brauer, 24 Neb. 510, 39 N.W. 591; McCormick Mach. Co. v. Knoll, 57 Neb. 790, 78 N.W. 394; Aultman-Taylor Co. v. Fraizer, 5 Kan. App. 202, 47 P. 156; Pitts Sons Mfg. Co. v. Spitznogle, 54 Iowa 36, 6 N.W. 71.) To be able to claim the contract remedy, Mr. Murphy must perform the precedent conditions and give notice of defects. (Seiberling & Co. v. Rodman, 14 Ind.App. 460, 43 N.E. 38; Springfield Engine Co. v. Kennedy, 7 Ind.App. 502, 34 N.E. 856.) If one party to a contract refuses to be bound the other can take advantage of the refusal and rescind the contract. ( Allen v. Webb, 24 N.H. 278; Drake v. Goree, 22 Ala. 409; Graves v. White, 87 N.Y. 463; Lewis v. White, 16 Ohio St. 444; Preble v. Bottom, 27 Vt. 249; Allen v. Webb, 24 N.H. 278; Webb v. Stone, 24 N.H. 282.) The purchaser has a right to try and test machinery where it is provided that notice of defects must be given. (Seiberling & Co. v. Rodman, 14 Ind.App. 460, 43 N.E. 38; Springfield Engine Co. v. Kennedy, 7 Ind.App. 502, 34 N.E. 856; Malsby v. Young, 104 Ga. 205, 30 S.E. 854.)

I. N. Smith, for Respondents.

A court of equity will not interfere "to decree the cancellation of a written instrument unless some special circumstance is shown to exist establishing the necessity of a resort to equity to prevent irreparable injury." (Ada County v. Bullen Bridge Co., 5 Idaho 79, 47 P. 818, 36 L. R. A. 367.) There is an inadequate remedy at law for all the ills that appellant is "heir to" by virtue of an alleged wrong of the company. Therefore, equity will not interfere. ( Ada County v. Gess, 4 Idaho 611, 43 P. 71; Morgan v. Kootenai County, 4 Idaho 418, 39 P. 1118; Rogers v. Hays, 3 Idaho 597, 32 P. 259; Pomeroy's Equity Jurisprudence, sec. 914; Story's Equity, sec. 700a; Lewis v. Tobias, 10 Cal. 578, 18 Ency. of Pl. & Pr., pp. 805m, 806, cases 807, note 2; Smith v. Sparrow, 13 Cal. 596; Idaho Rev. Stats., sec. 4928.) Appellant made no offer to surrender the property, no attempt so to do, and never expressed a desire so to do, until after the foreclosure proceedings had been instituted. This is too late. There is no charge that the foreclosure proceedings were fraudulently instituted. The six day period of possession had passed. (Cowen v. Harrington, 5 Idaho 329, 48 P. 1059; 18 Ency. of Pl. & Pr., pp. 835-837.) There is no showing that Russell & Co. are insolvent, nor that the company is threatening to dispose of the notes, nor that appellant has no adequate legal remedy. This is fatal. (18 Ency. of Pl. & Pr., p. 67; Story's Equity, sec. 700a; Kahn v. Walton, 46 Ohio St. 195, 20 N.E. 203; Springport v. Bank, 75 N.Y. 399; Salmon v. Hoffman, 2 Cal. 138, 56 Am. Dec. 322.) There is no fraud alleged in the sale. (18 Ency. of Pl. & Pr., pp. 813, 814.) There is no allegation that within six days' possession any notice whatever was given of any defects. That time is limited by the contract. Failure to give notice within that time made the retention of the property "conclusive evidence of the warranty being fulfilled, to the full satisfaction of the undersigned--appellant--who agrees thereafter to make no further claim on Russell & Co., under warranty." (Humphries v. Carvalho, 16 East, 45; Elphrick v. Barnes, 49 L. J. C. P. 698, 5 C. P. Davison, 321; Wayers Heater Co. v. Mansfield, 48 Vt. 378; Butler v. School District, 149 Pa. 351, 24 A. 308; Spickler v. Marsh, 36 Md. 222; Delamater v. Chappel, 48 Md. 244; Prairie Farmer Co. v. Taylor, 69 Ill. 440, 18 Am. Rep. 621; Aultman v. Theirer, 34 Iowa 272; Lynch v. Williford, 57 Minn. 377, 59 N.W. 311 (where the purchaser did an act which disabled him from performance); Benjamin on Sales, sec. 595.) "The special remedy usually allowed in such contracts is the privilege of returning the article, if it proves not to be as warranted, and receiving back the price paid. A failure to exercise the privilege within the time limited. . . . operates as a waiver of the special remedy, and limits the vendee to his ordinary remedy at law, etc." (Birdsall v. Carter, 11 Neb. 143, 7 N.W. 751; Harrisburg Car Mfg. Co. v. Sloan, 120 Ind. 156, 21 N.E. 1088; Brown v. Russell, 105 Ind. 46, 4 N.E. 428.) Phelps & Bigelow Windmill Co. v. Piercy, 41 Kan. 763, 21 P. 793, holds: "If a certain time is fixed by the contract within which it may be rescinded, failure to rescind within that time waives the right." (Huerculese etc. v. Dodsworth, 57 F. 566; Stultz v. Coal Co., 131 Pa. 131, 18 A. 267; Wendall v. Osborne, 63 Iowa 99, 18 N.W. 709, 710.) The original complaint was purely equitable; the amended complaint seeks to add thereto damages for breach of the very contract which appellant says does not exist. He elected to rescind. (Baumgartner v. Volmer, 5 Idaho 340, 49 P. 729; 21 Ency. of Pl. & Pr., subject "Theory of Case," p. 649; 18 Ency. of Pl. & Pr., p. 791, note 2; Alvarez v. Brannan, 7 Cal. 504, 68 Am. Dec. 274; Loaiza v. Superior Court, 85 Cal. 30, 20 Am. St. Rep. 197, 24 P. 707; Groppengiesser v. Lake, 103 Cal. 43, 36 P. 1036; Adams v. Reed, 11 Utah 480, 40 P. 720; Pomeroy's Rights and Remedies, secs. 568-573, inclusive--especially section 573, relating to election, where express contract is involved.)

SULLIVAN, J. Quarles, C. J., and Stockslager, J., concur.

OPINION

SULLIVAN, J.

This action was brought, under the provisions of section 3396 of the Revised Statutes, to contest the respondents' rights to foreclose a chattel mortgage, and to contest the amount claimed to be due thereon.

The facts out of which it arose are substantially as follows Russell & Co., of Massilon, Ohio, manufacturers and dealers in threshing machinery, had a local agency at Lewiston, Idaho and through their agent there sold to the appellant a threshing outfit, consisting of a separator, wind-stacker, an engine, beltings, trucks, tanks, Jackson feeder, Jackson blocks, Cyclone auger-bagger, trucks, and stacker, and all fixtures making a complete threshing outfit. All of this property was delivered to the appellant at Lewiston, Idaho and the purchase thereof was accompanied with a certain warranty as to the capability of the machinery performing the work for which it was...