Port Huron Engine & Thresher Co. v. Ball

Decision Date26 September 1911
Docket NumberCase Number: 932
Citation30 Okla. 11,1911 OK 314,118 P. 393
PartiesPORT HURON ENGINE & THRESHER CO. v. BALL.
CourtOklahoma Supreme Court
Syllabus

¶0 1. PRINCIPAL AND AGENT--Authority--Question for Jury. The apparent authority of an agent is to be gathered from all the facts and circumstances in evidence, and is a question of fact for the jury.

2. SALES--Performance of Contract--Waiver. Provisions in a contract of sale of machinery, requiring the purchaser, if not satisfied with the machinery at the end of the first day, to notify the company at its home office and give it time to send mechanics to operate the machine, and further providing that, if the purchaser is not satisfied after the test is made by these mechanics, that he shall procure some other machine for a competitive test, and further providing that none of the conditions of the contract may be waived, except in writing, signed by an officer of the seller, may all be waived by the seller, if in response to an informal notice it sends agents to examine and test the machinery, who make promises of repairs and adjustments, upon which the purchaser relies in future dealings with the seller.

Error from District Court, Grant County; W. M. Bowles, Judge.

Action by the Port Huron Engine & Thresher Company against Charles E. Ball. Judgment for defendant, and plaintiff brings error. Affirmed.

Holmes & Yankey and F. G. Walling, for plaintiff in error

Sam P. Ridings, C. E. Elliott, and A. C. Glenn, for defendant in error

AMES, C.

¶1 Plaintiff in error, plaintiff below, brings this action against the defendant in error, defendant below, to recover certain personal property, in which it claims an interest by virtue of a chattel mortgage. The indebtedness which is secured by the mortgage is a balance on the purchase price of certain threshing machinery. The defense is that the machinery does not comply with the warranties under which it was sold. The evidence of the defendant tends to support his claim, and the plaintiff did not offer any evidence to the contrary, but claimed that notice of defects was not given by the defendant as required by the contract. The defendant does not claim that notice was given within the time or in the manner stated in the contract, but claims that the plaintiff waived this provision by sending experts to examine and adjust the machinery. In response to this claim, plaintiff relies upon the following provision of the contract:

"When approved and accepted, this order is a binding contract. It cannot be waived in any respect, except in writing over the signature of an officer of the company. * * * Agents, salesmen, and mechanical engineers have no general agency powers, and are without authority to bind the company, or release the purchaser by any contract or statement whatever, and it is agreed that no act or statement of theirs shall expressly or impliedly waive any of the terms of the preceding conditions."

¶2 There is evidence tending to show that the Peru-Van Zandt Implement Company was the agent of the plaintiff for the purpose of making the sale, collecting the payments as they matured, giving extensions, taking new mortgages, and making repairs. The defendant dealt with the Peru Company and its agents for several years, gave renewal paper several times, and did not return the machinery until after having used it two or three seasons. His testimony, however, which is not disputed, is to the effect that these acts were because of continual promises of improvements made by plaintiff. By the terms of the contract defendant was required to notify plaintiff of dissatisfaction at its home office within one day after commencing to operate the machinery. This the defendant did not do, but he did afterwards notify the Peru-Van Zandt Implement Company. Upon this notice an expert was sent to examine and adjust the machinery, and such examinations were made from time to time; the negotiations in the main being between the defendant and the ...

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12 cases
  • W. Nat. Ins. Co. v. Marsh
    • United States
    • Oklahoma Supreme Court
    • April 9, 1912
    ...court in Arkansas Ins. Co. v. Cox, 21 Okla. 873, 98 P. 552, 20 L.R.A. (N.S.) 775, 129 Am. St. Rep. 808, and in Port Huron Engine & Thresher Co. v. Ball, 30 Okla. 11, 118 P. 393. In Arkansas Ins. Co. v. Cox, 21 Okla. page 880, 98 P. page 555, 20 L.R.A. (N.S.) 775, 129 Am. St. Rep. 808, it is......
  • Exchange v. Coon
    • United States
    • Oklahoma Supreme Court
    • April 29, 1913
    ...waiver of a breach or forfeiture of said contract by him bound the company. This case is cited with approval in Port Huron Engine & Thresher Co. v. Ball, 30 Okla. 11, 118 P. 393. It follows that such forfeiture, even after the loss, may be waived by the assurer through its adjuster. There i......
  • Horton v. Early
    • United States
    • Oklahoma Supreme Court
    • August 6, 1913
    ...Stone, 21 Okla. 833, 97 P. 577; Minneapolis Threshing Machine Co. v. Humphrey et al., 27 Okla. 694, 117 P. 203; Port Huron Engine & Thresher Co. v. Ball, 30 Okla. 11, 118 P. 393; Allen v. Kenyon, 30 Okla. 536, 119 P. 960; Midland Sav. & Loan Co. v. Sutton et al., 30 Okla. 448, 120 P. 1007; ......
  • Schaff v. Kramer
    • United States
    • Oklahoma Supreme Court
    • March 31, 1925
  • Request a trial to view additional results

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