National Cash Register Co. v. Mahaney
| Decision Date | 28 October 1925 |
| Docket Number | 5349 |
| Citation | 205 N.W. 710,49 S.D. 1 |
| Parties | NATIONAL CASH REGISTER COMPANY, Plaintiff and appellant, v. PEARL MAHANEY, Defendant and respondent. |
| Court | South Dakota Supreme Court |
PEARL MAHANEY, Defendant and respondent. South Dakota Supreme Court Appeal from Circuit Court, Brown County, SD Hon. W. F. Eddy, Judge #5349--Affirmed W. F. Corrigan, Aberdeen, SD Attorneys for Appellant. Campbell & Fletcher, Aberdeen, SD Attorneys for Respondent. Opinion filed October 28, 1925
This is an action brought by the appellant, National Cash Register Company, to recover judgment upon an installment note signed by the respondent, Pearl Mahaney, and payable to the appellant. The facts, as disclosed by the record, are as follows:
Prior to the month of February, 1920, the respondent and her husband, William Mahaney, had been engaged in the restaurant business in the city of Aberdeen. Early in said month they began to conduct their business on the cafeteria plan. On February 5, 1920, the respondent signed a written order authorizing the appellant to furnish and ship, freight prepaid, to the respondent, one of appellant's cash registers, "No. 1748, oak finish, denomination of keys standard, for use on front counter cafeteria business," for which respondent agreed to pay $525--$30 cash at time of making contract, and the remaining $495 in deferred monthly payments according to the terms of the note sued upon. The writing provided: "This contract covers all agreements between the parties and shall not be countermanded." The writing contained no description of the cash register to be furnished, except the number, finish, and arrangement of keys, as above stated.
Respondent paid the $30 and later received from appellant a cash register, which respondent and her husband uncrated, but did not use. Later the machine was crated up and shipped back to appellant, accompanied by a letter in which respondent stated that Mr. Adler (appellant's agent, who secured the order) would explain the trouble; that appellant might consider the order canceled, and need not ship another register. To this letter appellant replied by a letter stating:
"We were sorry to learn that you were unable to use the register owing to the fact that there was no compartment to take care of your pennies."
This letter also contained the further statement:
Since that correspondence the register has remained in appellant's possession, and respondent has made no payments, except the first $30. Respondent and her husband both testified that, at the time of signing the order, they stated that, in order to be fit for their use in the cafeteria business, the register must have five compartments at the front to accommodate half dollars, quarters, dimes, nickels, and pennies; that they called the agent's attention to the fact that the register which they were using at that time had five compartments in the front row, and that the new one must be similarly arranged to meet the requirements of their business. And they say that the agent assured them that the register which would be furnished them on their order would be so arranged, that the till in the machine described in the order would be exactly the same as that in the old machine, but the new one would have the adding machine and individual order slip attachment. And they testified that respondent signed the contract and notes relying upon these representations, and that the order and notes would not have been signed, if they had not believed such representations and relied on them. And they say that the register sent to them by appellant had only four coin, compartments in the first row of its till; that this fact rendered it unsuitable for their cafeteria business. And they say that as soon as they discovered this fact they reported it to appellant's local agent, and he said he would not have anything to do with it, and one Kincaid, who had been doing repair work for appellant, and who was with the local agent when the contract was signed, and participated in securing respondent's signature, told respondent and her husband to ship the machine back. And they say that thereupon they promptly shipped the machine to appellant. And respondent contends that because of these facts she has a legal right to rescind the contract and recover the $30 paid by her thereon.
Appellant presented no evidence to dispute respondent's evidence as to the representations made in securing the signature to the order and note. Nor does it show that it made any explanation as to the arrangements of the till, or any offer to supply a register such as respondent claimed she was told she was ordering: It was stipulated that, if Kincaid were present in court, he would testify that the register delivered to the respondent by the appellant was a No. 1748 oak finish, denomination of keys standard and it was the regular register of that kind put out by the company. But the stipulation does not cover any denial as to the representations alleged to have been made.
The case was tried to a jury, but at the close of the evidence each party moved for the direction of a verdict. The trial court denied appellant's motion and granted that of respondent. In accordance with the direction of the court the jury returned a verdict in favor of respondent for the return of the $30 paid by her. Upon this verdict a judgment was entered in favor of respondent and against the appellant for $34.20 and costs. The appellant's motion for a new trial was denied, and from the judgment and the order denying a new trial this appeal is taken.
Appellant's brief presents numerous assignments of error, but all of them may be classified so as to bring all of appellant's contentions under three distinct...
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