Nichols & Shepard Co. v. Charlebois

• Decision Date: 07 November 1901
• Citation: 88 N.W. 80,10 N.D. 446
• Court: North Dakota Supreme Court

88 N.W. 80

10 N.D. 446

NICHOLS & SHEPARD v. GEORGE CHARLEBOIS, et al

Supreme Court of North Dakota

November 7, 1901

Appeal from District Court, Rolette County; Morgan, J.

Action by Nichols & Shepard Company against George Charlebois and others. Judgment for defendants, and plaintiff appeals. Modified.

Affirmed; Appellant recovered his costs.

John Burke and Turner & Lee, for appellant.

P. J McClory, for respondents.

FISK D. J. MORGAN, J., took no part in the decision; Judge C. J FISK, of the First judicial district, sitting by request.

OPINION

FISK, D. J.

This is an action commenced in the district court of Rolette county, for the purpose of foreclosing two certain mortgages executed and delivered by the defendants, George Charlebois and Bolevard Brunut, to the plaintiff to secure the payment of three certain promissory notes, for $ 940 each, representing the purchase price of a certain threshing rig purchased by said defendants from the plaintiff in September, 1899, consisting of an engine, separator, weigher, self-feeder, driving belt and water tank. The complaint is in the usual form. The answer admits the execution and delivery of the notes and mortgages, and by way of defense alleges, in substance, that said machinery was purchased by them under an express warranty that the same was well made, of good material, and that it was capable of doing well the work for which the same was made and sold, and that if it did not comply with such warranty it might, under certain conditions, be returned by them to the place where it was received, and the defendants would in such event be released from all liability on account of the purchase price thereof. They further allege that said machinery failed to comply with the terms of the warranty, and that they returned the same to plaintiff, and they allege full compliance on their part with the terms of the contract of warranty. The trial court found in favor of the defendants upon all of the issues, and judgment was rendered directing the cancellation of said notes and mortgages, and for the costs and disbursements of the action. From this judgment the plaintiff has appealed to this court, and asks a trial de novo of the entire issues.

The following are conceded facts in the case:

On July 22, 1899, the defendants, Bolevard Brunut and George Charlebois, signed an order for this machinery, the material provisions of which are as follows:

"Rolla, N.D., July 22nd, 1899. Nichols & Shepard Company, Battle Creek, Mich.: You will please ship for the undersigned, to or in care of James O'Laughlin, at Rolla, N.D., by the route you consider best and cheapest, on or about the 1st day of August, 1899, with the fixtures and extras as you usually furnish them: 1 22-horse simple S. B. traction engine; 1 Perfection weigher, Dak. style; 1 belted separator, with 41-inch cylinder, 64-inch rear, and 18-foot stacker; 1 Nichols & Shepard self-feeder; 1 rubber drive belt, 150 feet long, 8 inches wide; 1 water tank, with trucks. The undersigned agree to receive such machinery on its arrival subject to all the conditions and agreements printed below, and pay in cash the freight and charges thereon from the factory, and also agree to pay to your order, at the time and place of delivery, the further sum in cash and notes, as follows: [Here follows a description of the three $ 940 notes.]

"Warranty. This machinery is purchased and sold subject to the following express warranty, viz.: That said machinery is well made, of good materials, and, with proper management, capable of doing well the work for which the machines, respectively, are made and sold; conditioned that if, within five days from its first use, it shall fail to fill this warranty, written notice shall be immediately given by the purchaser to Nichols & Shepard Company, at Battle Creek, Mich., by registered letter, and written notice also to the local dealer, through whom the same was received, stating particularly what parts and wherein it fails to fill the warranty. Reasonable time shall be allowed the company to get to the machine, with its workmen, and remedy the defect, if any there be, the purchaser to render friendly assistance and co-operation. * * * If, after giving the notices above provided, any part of the machinery cannot be made to fill the warranty, that part which fails shall be returned immediately, to place where it was received with the option of the company either to furnish another machine or part in place of the machine or part so returned, which shall perform the work or return the money or notes which have been received by the company for the same, and thereby rescind the contract to that extent, or the whole, as the case may be, and be released from any further liability herein. The failure of any separate machine or any part thereof shall not affect the contract or liability of the purchaser for any other separate machine, or for any parts of such machine as are not defective. It is expressly agreed that said company shall be liable only for the return of cash and notes payable to its order actually received by it, and not for any machinery or other property taken herein as part payment. * * * Independent stackers, automatic weighers, baggers, wagon loaders, and self-feeders, when ordered, are furnished as extra attachments, at stipulated separate prices, and subject to this warranty and its provisions. * * * If any such attachment fails to fill the warranty, * * * such attachment may be returned to the place where received; * * * but such failure and return of any such attachment shall not affect the contract for any of the other machinery or the liability of the purchasers thereof. * * * Failure to render friendly assistance and co-operation, or failure to give any of the notices in writing as provided for herein, or keeping the machinery after the five days allowed as above provided, shall be a waiver of the warranty, and a full release of the company.

"[Signed.]

Bolevard Brunut,

"George Charlebois."

On the 8th day of September, 1899, the said defendants received said machinery and settled for same by executing and delivering to plaintiff three notes, for $ 940 each, and the machinery was taken to the farm of the defendants, and on the 9th day of September an attempt was made to operate it, and the separator would not properly separate the grain from the straw. No claim is made that the other machinery would not work to the satisfaction of the defendants. The separator failed to comply with the warranty, and on or about September 29th the entire rig was returned by defendants to the place where it was received.

The questions for determination on this appeal are--First. Have the defendants complied with all the conditions precedent to be by them complied with before they have a right to rely upon a breach of the warranty. Second, in case they have complied with all the conditions precedent to be by them performed, have they taken the proper steps to enforce such right, and are they now entitled to relief.

The warranty contains certain conditions which must be complied with by the defendants before they can rely upon a breach thereof. One of these conditions was that within five days from its first use, if the machinery failed to fill the warranty, written notice should be given to the plaintiff at Battle Creek, Mich., by registered letter, and also written notice to the local dealer, stating particularly what part and wherein the machinery failed to fill the warranty. Did defendants comply with this condition? They claim that on the 13th day of September, which was within five days from the time they commenced to operate the machinery, they registered a letter to the plaintiff at Battle Creek, Mich containing a notice that the separator did not comply with the warranty, stating wherein it did not comply. The burden was upon the defendants to prove the giving of this notice. Have they done so? At the trial the defendants' counsel demanded from plaintiff's counsel the production of the letter sent to the plaintiff. Plaintiff's counsel stated in open court that it was too late to demand such letter and that counsel had no such letter, and that if the same was in existence it was more than a thousand miles from the place of trial. Defendants then offered in evidence a registry receipt, issued at the postoffice at Rolla, purporting to be for a letter sent to plaintiff on September 13th. Defendant Charlebois then testified to the contents of this letter; plaintiff objecting upon the ground that the same was incompetent, irrelevant, and immaterial, and no foundation laid for the introduction of secondary evidence, for the reason, as stated, that no notice was served on the plaintiff to produce the original. The defendant Charlebois then testified that the letter in question informed plaintiff that the separator did not separate the grain from the straw. Similar testimony was introduced regarding the contents of the letter sent to the agent, and the same objection was made to the introduction of this testimony. Was this testimony competent? The general rule is that notice to produce must be given before secondary evidence can be received as to the contents of a written document in the possession of the adverse party, but there is a well-settled exception to this rule. Where the issues framed by the pleadings necessarily disclose to the adverse party that proof of the document will be necessary at the trial, it is well settled that notice to produce the document is not necessary in order to admit secondary evidence of the contents of such document in case the original is not produced. The adverse party is bound to take notice from the pleadings that the production of the document at the trial is...