Rectenbaugh v. Northwestern Port Huron Co

• Decision Date: 18 November 1908
• Citation: 22 S.D. 410,118 N.W. 697
• Parties: THEODORE RECTENBAUGH, Plaintiff and respondent, v. NORTHWESTERN PORT HURON COMPANY, Defendant and appellant.
• Court: South Dakota Supreme Court

22 S.D. 410

118 N.W. 697

THEODORE RECTENBAUGH, Plaintiff and respondent,

v.

NORTHWESTERN PORT HURON COMPANY, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, McCook County, SD Hon. Joseph W. Jones, Judge Affirmed M. A. Butterfield Attorneys for appellant. A. C, Biernatzki, E. H. Wilson Attorneys for respondent. Opinion Filed November 18, 1908

CORSON, J.

This action was instituted by the plaintiff to recover from the defendant the amount of certain promissory notes executed by the plaintiff, expenses attending the defense of an action upon one of said notes, and freight paid by him on a certain threshing rig, claimed by the defendant to have been purchased by the plaintiff, but which the plaintiff refused to accept. Verdict and judgment being in favor of the plaintiff, the defendant has appealed.

It appears from the record that the plaintiff introduced evidence tending to prove that on or about the 21st day of July, 1903, the plaintiff gave an order for certain threshing rig machinery to the defendant which was not accepted by that company; that some ten days later, being advised that the first order had not been accepted, the plaintiff signed a second order, which was accepted by the defendant, and an engine and threshing rig was a few days thereafter shipped to the plaintiff at Salem, in this state; that, upon the arrival of said threshing rig at Salem, the plaintiff made a partial examination of the same, but was not allowed to unload it, and did not have an opportunity to fully examine it as it was situated upon the cars at the station; that the general agent of the defendant refused to allow the machinery to be unloaded from the cars until the freight was paid and certain notes and chattel mortgages executed by the plaintiff in accordance with the terms of the order; that the plaintiff was induced to execute the notes and chattel mortgage upon the agreement by the agent that he would retain the notes and chattel mortgage or deposit them at a bank in Canistota until the plaintiff had had an opportunity to fully inspect and examine the machinery; and that, if the plaintiff was not satisfied that the same was such as he had ordered, the notes and chattel mortgage should be returned to him; that thereupon the plaintiff paid the freight, about $150, executed four notes aggregating about $1,850 and a chattel mortgage, and thereupon the machinery was unloaded, and, upon en examination of the same, the plaintiff determined that it did not correspond with the machinery ordered, refused to accept the same, and demanded from the agent his notes and chattel mortgage so executed by him; and the defendant refused to surrender them, and subsequently three of the notes were transferred by the defendant before maturity, and in the usual course of business, and that in an action upon one of the notes judgment was recovered against the plaintiff. The complaint is too lengthy to be inserted in this opinion, but alleges, in substance, the foregoing statement of facts.

The answer set up various defenses, among which was that a written order was executed by the plaintiff; that said written order contained all of the agreement and representations of the defendant in regard to the same and also contains a complete description of the machinery so ordered; that the defendant accepted the order, and immediately sold and delivered the machinery ordered to the plaintiff in all respects described in the order; that the plaintiff is now estopped from claiming that the said machinery is and was not as ordered, and is estopped from asserting that there is a breach of any warranty of said machinery, for the reason that, having taken the same into his possession, the plaintiff neglected and refused to attempt to make the same operate as provided in said order; that plaintiff is estopped by his own agreement from claiming any breach of warranty, or of claiming that the machinery delivered to him by defendant is not in all respects such as plaintiff ordered, for the reason that the order contains the entire contract between plaintiff and defendant in regard to the same, and defendant alleges that he has fully complied with all and every condition of the aforesaid contract and agreement, and demands judgment that the action be dismissed.

Before the commencement of the trial, the defendant moved the court to compel the plaintiff to elect whether he would attempt to recover for breach of warranty as independent damages or whether he would rely only upon the claim for the value of the notes which were given by plaintiff to defendant and claimed to have been sold. The court ruled upon this motion that the complaint clearly shows a suit for the recovery of the value of the amount of the notes, and thereupon overruled the objection. On the trial plaintiff offered evidence tending to prove the allegations of his complaint. The plaintiff then...