Osborne v. Marks

• Decision Date: 03 January 1885
• Citation: 33 Minn. 56,22 N.W. 1
• Parties: OSBORNE AND OTHERS v MARKS.
• Court: Minnesota Supreme Court

33 Minn. 56

22 N.W. 1

OSBORNE AND OTHERSvMARKS.

Supreme Court of Minnesota.

Filed January 3, 1885.

Appeal from an order of the district court, Lyon county.

G. D. Emery, for appellant, D. M. Osborne & Co.

V. B. Seward, for respondent, Charles Marks.

GILFILLAN, C. J.

Action on a promissory note for $125, dated July 19, 1880, due November 1, 1882. Answer: that the note, with two others which have been paid, to the amount of $212.03, were given for the price of a harvester and binder, sold July 19, 1880, by plaintiff to defendant, with this written warranty: “All our machines are warranted to be well built, of good material, and capable of cutting, if properly managed, from 10 to 15 acres per day. If, on starting a machine, it should in any way prove defective and not work well, the purchaser shall give prompt notice to the agent from whom he purchased it, and allow time for a person to be sent to put it in order. If it cannot then be made to do good work the defective part will be replaced, or the machine taken back and the payment of money or notes returned. Keeping the machine during harvest, whether kept in use or not, without giving notice as above, shall be deemed conclusive evidence that the machine fills the warranty.”

The breach alleged is that the machine was not well built nor of good material, and would not under any management cut more than five or six acres per day; that it proved defective and would not work well at all, of which defendant forthwith notified plaintiff's agent, who tried, but failed to make it work; that plaintiff refused and neglected to repair it or replace the defective parts, and refused to take it back and return to defendant the money paid and notes given by him; and that the machine was never of any value whatever. Damages to the amount of $497 are alleged, for which judgment in favor of defendant is demanded. The reply takes issue on the alleged breach of warranty and damages, and alleges that August 7, 1882, the defendant, in consideration of an extension by it of the time for payment of one of the notes (not that in suit) given for the price of the machine, the defendant, in writing, released it from the warranty, and all claims arising out of the same.

Some of the points made by appellant require a construction of the warranty in respect to notice of the machine not working well. As to that it claims that the first harvest was to fix and determine whether the warranty was satisfied or not, and after that time no complaint or notice (no matter, as we understand it, how many times complaint had been made and notice given during the first season, if, whenever notified, during that season it fixed the machine so that it would work) could change or vary the fixed rights of the appellants under the contract. Ordinarily, any defect in the machine within the terms of the warranty, existing at the time of the sale, no matter when discovered, (certainly if within a reasonable time,) would be a breach. The warranty in this case modifies this rule. It is in effect an agreement that if the machine should, during the first season, work as warranted, that should be taken as conclusively showing it to be as warranted, and that a failure during that season to give notice of defects should be taken as conclusive evidence that the machine worked as warranted, and that in case of notice the appellant should have a reasonable opportunity to cure the defects. Though, upon a strict construction of the terms, notice is required only when, (at any time during the first season,) it should be first discovered that the machine failed to work, leaving it for appellant, on that notice, to ascertain wherein the defects lay and correct them, if they could...