Plano Manuf'g Co. v. Root

• Decision Date: 15 March 1893
• Parties: PLANO MANUF'G CO. v. ROOT.
• Court: North Dakota Supreme Court

3 N.D. 165

54 N.W. 924

PLANO MANUF'G CO.

v.ROOT.

Supreme Court of North Dakota.

March 15, 1893.

Syllabus by the Court.

1. Written contract construed, and held to constitute an agreement for sale and purchase of property, the title to pass on delivery and acceptance thereof. After such delivery and acceptance the purchaser cannot claim, in an action for the purchase price, that the burden is on the vendor to show that the property was as warranted. The warranty is collateral, and the purchaser must affirmatively show a breach thereof, and full performance of all conditions precedent of the warranty, to entitle him to rescind and defeat the action.

2. The fact of agency and the extent of an agent's power cannot be proved by the agent's declarations.

3. The scope of an agent's authority cannot be established by parol when the employment of the agent defining his power is in writing.

4. The rule excluding all prior and contemporaneous negotiations when a contract is reduced to writing held applicable to the facts of this case.

Appeal from district court, Richland county; W. S. Lauder, Judge.

Action by the Plano Manufacturing Company against William Root. Plaintiff had judgment, by direction of the court, and defendant appeals. Affirmed.McCumber & Bogart, for appellant. W. E. Purcell and L. B. Everdell, for respondent.

CORLISS, J.

The action was brought to recover the purchase price of a binder sold by plaintiff to defendant. On the trial a verdict was directed for the plaintiff. Defendant appeals. The order for the binder was in writing. It constituted the contract between the parties. It, in substance, authorizes and requests an agent of the plaintiff's to procure for defendant a harvester and binder, describing it, for which defendant agrees to pay $120 in addition to freight, etc., on delivery of the property. The order then continues as follows: “I understand that the machine referred to is sold, and that I am purchasing the same subject to the following warranty and agreement, and that the agent above named, as well as the person to whom I deliver this instrument, has no authority to add to, abridge, or to change said warranty in any manner. The warranty is as follows, to wit.” The warranty referred to states that the binder is well made of good materials, and with proper care and management is capable of doing as good work as any other machine in the market. Other provisions of the warranty will be referred to later. The execution of this order, and the delivery of the machine thereunder, were admitted.

Plaintiff having rested without proving that the binder was well made of good materials, and was capable of doing as good work as any other machine in the market, defendant moved to dismiss, on the ground that plaintiff had failed to establish performance of conditions precedent to recovery. We cannot assent to his interpretation of the contract. It was a contract of sale and purchase, with a collateral agreement constituting a warranty. The burden was on defendant to show a breach of the warranty; and even then he could not defeat the action without showing that he had complied with the conditions of the warranty to be performed on his part, and had rescinded the contract, or had sustained damages by reason of such breach of warranty equal to or exceeding plaintiff's claim. The parties intended that the title to the property should pass on delivery. The defendant states in the order signed by himself that he understood that the machine is sold, and that he is purchasing it subject to the following warranties, etc. The defendant did not agree to buy if certain conditions were fulfilled. He agreed to purchase a certain machine, and, when it had been delivered to and accepted by him, he was obliged thereafter to rely upon the warranty as any other purchaser of property. He must perform its conditions. He must either rescind or claim damages for breach. On the trial defendant asked leave to amend his answer by alleging, in substance, that, at the time he executed and delivered this order, one Parsons, general agent of the plaintiff, agreed with defendant that, if the machine did not do good work, defendant need not keep...