National Cash Register Co. v. Wall

• Decision Date: 19 May 1920
• Docket Number: 4124.
• Citation: 190 P. 135,58 Mont. 60
• Parties: NATIONAL CASH REGISTER CO. v. WALL.
• Court: Montana Supreme Court

190 P. 135

58 Mont. 60

NATIONAL CASH REGISTER CO. v. WALL.

No. 4124.

Supreme Court of Montana

May 19, 1920

Appeal from District Court, Musselshell County; Charles L. Crum Judge.

Action by the National Cash Register Company against F. M. Wall. Judgment for defendant, and new trial denied, and plaintiff appeals. Affirmed.

Boarman & Boarman and C. H. Tylor, all of Roundup, for appellant.

Thomas J. Mathews, of Roundup, for respondent.

COOPER J.

This action was brought by appellant to recover the possession of a cash register sold to the respondent, damages for withholding its possession, and a balance alleged to be due on a promissory note given in payment therefor. The purchase the execution of the order for its delivery, and the making of the note in payment therefor are admitted. It is affirmatively alleged that, by reason of the failure of the plaintiff to properly equip the machine with a stamping device and special keys suitable for the stamping of checks deposit slips, and other papers used by defendant in his business--as plaintiff agreed it would do--its attempted use produced such a blurring effect upon the papers upon which it was used as to make the figures difficult to distinguish that after a fair and persistent trial, and its failure to perform the work for which it was purchased, respondent was obliged to and did discard its further use, tendered it back to the plaintiff, and refused to pay the note given as the purchase price. The defendant's affirmative defense is denied by the plaintiff. Upon the trial the jury awarded defendant a verdict in the sum of $45.33 damages, and judgment was rendered for that amount and costs. Plaintiff has appealed from an order denying its motion for a new trial.

Many of the specifications of error charged against the trial court have to do with the admission and rejection of evidence concerning the alleged defects in the machine forming the subject-matter of this controversy. Appellant insists that the contract sued on was free from ambiguity, and that the evidence interpreting the expression "denomination of keys to be special," was erroneously admitted as tending to vary, rather than to elucidate, the terms of the written instrument in question. We think counsel misconceived respondent's purpose in pressing this inquiry, as well as the theory of the court in permitting it. The only paragraph descriptive of the thing in action is as follows:

"Please ship as soon as possible to your order for the undersigned at Roundup, Musselshell county, Montana, one of your 598E registers, case to be 'B' denomination of keys to be 'special.' "

The word "special" as used, if it means anything, must mean "special" as distinguished from "general," "unusual" as distinguished from "usual," "extraordinary" as distinguished from "ordinary," as the words are commonly used in business transactions involving the sale and description of an article similar to the one here...