Nat'l Cash Register Co. v. Midway City Creamery Co.

• Decision Date: 30 December 1922
• Citation: 191 N.W. 762,49 N.D. 441
• Parties: NATIONAL CASH REGISTER CO. v. MIDWAY CITY CREAMERY CO.
• Court: North Dakota Supreme Court

49 N.D. 441

191 N.W. 762

NATIONAL CASH REGISTER CO.

v.MIDWAY CITY CREAMERY CO.

Supreme Court of North Dakota.

Dec. 30, 1922.

Syllabus by the Court.

The defendant on the trial attempted to give certain evidence to substantiate certain defenses set forth in the answer. On objection, the same was not received. It then made an offer of proof, setting forth the evidence which it desired to introduce. The offer was denied.

For reasons stated in the opinion, it is held that the court erred in refusing to receive the evidence and in the denial of the offer thereof.

Appeal from District Court, Eddy County; W. L. Nuessle, Judge.

Action by the National Cash Register Company against the Midway City Creamery Company. From a judgment for plaintiff and from an order denying motion for a new trial, defendant appeals. Reversed and remanded.

Birdzell, C. J., and Christianson, J., dissenting.N. J. Bothne, of New Rockford, for appellant.

James A. Manly, of New Rockford, for respondent.

GRACE, J.

This is an appeal from a judgment in plaintiff's favor and from an order denying defendant's motion for a new trial. The action is one to recover the sum of $310, with interest, since April 12, 1921, claimed by plaintiff to be due and owing it from the defendant on a certain $500 note, executed by defendant to plaintiff, representing the purchase price of a certain cash register.

The complaint, in addition to stating a cause of action on the note, sets forth the contents of a certain written order, directing plaintiff to manufacture and ship by prepaid freight, a cash register, fully describing it and stating the amount of the purchase price and terms of payment.

It is not deemed essential to set forth in this opinion the terms of the contract more specifically. The promissory note was an installment note. By way of defense and counterclaim, the defendant alleged the following in its answer:

“That on or about the 7th day of October, 1919, the plaintiff's agent and representative came to defendant in the city of New Rockford, N. D., and then and there attempted to sell to defendant a cash register to be used in defendant's place of business in said city of New Rockford; that defendant at that time had a cash register in its business, and was therefore unwilling to buy another one; that, in order to induce defendant to buy said cash register, the plaintiff's said agent and representative did then and there falsely and fraudulently represent and state to defendant that the said cash register so offered for sale by the plaintiff was an entirely new invention and of such wonderful and remarkable construction and make-up that it would dispense with and eliminate a bookkeeper in defendant's place of business, and thus save the salary and expenses of one person; that, in order to further induce defendant to buy the said cash register, the plaintiff's said agent and representative did then and there also falsely and fraudulently represent, state, and promise to defendant that, if defendant would buy the said cash register, the plaintiff would furnish and send an expert up to New Rockford, N. D., and set up the said cash register in defendant's place of business and show and instruct defendant how to use and operate the same so as to save the work of a bookkeeper.

That defendant, relying upon the said representations, statements, and promises of the plaintiff, and believing them to be true, and not otherwise, was thereby induced to sign Exhibit A set out in the complaint herein, and to buy the said cash register from the plaintiff, and to sign the said promissory note, and to pay part of the purchase price for said cash register.

That afterwards the plaintiff shipped the said cash register to defendant, and defendant paid to the plaintiff the purchase price therefor, as follows: $30 in money; an old cash register valued at $30; and the said promissory note sued upon herein for $440-and that defendant later paid to the plaintiff the sum of $130 on the said promissory note.

That the plaintiff has at all times failed, neglected, and refused to send up or furnish an expert to set up the said cash register in defendant's place of business and to show and instruct defendant how to use and operate the same, as it had promised and agreed to do; that the said cash register was a complicated piece of machinery, and defendant did not know how to correctly use, run, or operate the same, without the aid or instructions from an expert, which the plaintiff has at all times failed, neglected, and refused to furnish; that the said statements, representations, and promises of the plaintiff, as aforesaid, were false and fraudulent, and were known to be false and fraudulent by the plaintiff; that the promise made by the plaintiff, namely, to send up and furnish an expert to set up the said cash register in defendant's place of business and show and instruct defendant how to use and operate the same, was made by the plaintiff without any intention of performing it, and simply for the purpose of fraudulently inducing defendant to sign the said promissory note and Exhibit A and to buy the said cash register and pay the purchase price therefor; that the said cash register was not as represented by the plaintiff, and did not eliminate or dispense with a bookkeeper in defendant's place of business or save any salary or expenses to defendant, as the plaintiff had represented and promised it would do; and that the same therefore was practically useless and of no value to defendant.

That on account of plaintiff's false and fraudulent representations, statements, and promises, as aforesaid, defendant on or about the 23d day of July, 1920, duly rescinded the said contract for the purchase of the said cash register, and did then duly return the said cash register to the plaintiff, and that the plaintiff has ever since kept and retained the same, and has duly consented to such return and to the rescission of the said contract.

That as a result of the plaintiff's fraudulent representations, statements, and promises, as aforesaid, defendant was induced to pay and part with $160 in money, an old cash register valued at $30, and the said promissory note sued upon herein, and that defendant has been damaged thereby in the sum of $500.

As a further defense to the plaintiff's alleged cause of action herein the defendant alleges: That on or about the 23d day of July, 1920, defendant duly returned the said cash register to the plaintiff, and that the plaintiff has ever since kept and retained the same, and has duly consented to such return; that the consideration and the only consideration for the note sued upon in this action has been and is now kept and retained by the plaintiff; that defendant has not received value or consideration of any kind for the said note; and that the said note sued upon herein is wholly without consideration, and is therefore absolutely null and void.”

Defendant asked judgment that the plaintiff take nothing in the action, and that defendant recover judgment against plaintiff for $190, the sum of the payments made. Plaintiff in its reply to the allegations of the answer states the following:

“Plaintiff admits that on or about the 23d day of July, 1920, defendant attempted to rescind the contract for the purchase of said cash register, and returned the same to plaintiff's agent at Fargo, N. D., but that plaintiff expressly denies that it has kept and retained said cash register, or consented to such return, or to the rescission of the contract for the purchase of the same; that on receiving notice of the return of said register the plaintiff promptly, on or about the 30th day of July, 1920, notified defendant that plaintiff could not accept the return of said register or consent to the rescission of said contract, and that said register would be held subject to the order of and at the risk of the defendant; that the said register now is, and all times since the return of the same as aforesaid has been, held by the plaintiff subject to the order of and at the risk of said defendant.”

The only assignment of error necessary to consider is that relating to the exclusion of certain evidence and the offer of proof of that evidence. The evidence excluded is as follows:

“Q. Now, in the fall of 1919 did you have any transactions with a representative of the National Cash Register Company? A. I did.

Q. A man came up here to see you about selling you a cash register? A. Yes, sir.

Q. Do you know the name of the representative? A. No; I do not recall it.

Q. That is the man that sold you the cash register? A. Yes, sir.

Q. Where was the conversation had that you had with him? A. In the creamery office.

Q. In your office in this city? A. In the creamery; yes.

Q. You may state to the jury what the conversation was between you and him relative to the sale of this cash register.

Mr. Manly: That is objected to...