Reeves & Company v. Cress
| Decision Date | 16 July 1900 |
| Docket Number | 12,183 - (155) |
| Citation | 83 N.W. 443,80 Minn. 466 |
| Parties | REEVES & COMPANY v. NICK CRESS and Others |
| Court | Minnesota Supreme Court |
Action in the district court for Mower county to recover $740 for goods sold and delivered. Defendants by amended answer set up a counterclaim. The case was tried before Kingsley, J., and a jury, which rendered a verdict in favor of defendants for the amount claimed. From an order denying a motion for judgment notwithstanding the verdict or for a new trial, plaintiff appealed. Affirmed.
Pleading -- Amendment -- Evidence.
It is within the sound discretion of the trial court to permit a pleading to be amended after a new trial granted by this court, and in such case the original pleading may be used as evidence on the second trial, but does not, as an admission conclude the party who made it. Its weight is in such cases an issue of fact.
Contract -- Explanation of Ambiguous Terms.
When ambiguous and unintelligible terms or words are used in a written contract, it is proper to show in what sense the same were so used and understood by the parties.
Written Contract -- Pleading Fraud.
Upon an issue which does not set out or in any way indicate the existence of a writing, which is, without notice, produced at the trial to support such issue, it cannot be required that the opposite party shall anticipate its production, and allege in his pleading fraud in its procurement, in order to introduce evidence of such fraud.
Sale on Trial -- Authority of Agent.
An agent to sell property, and contract for its acceptance in the future, has authority himself, or through a subagent, to request the purchaser to retain the property sold on trial for a longer time, before the same is accepted.
Failure to Furnish Article Purchased -- Damages.
When upon good consideration, a party agrees to furnish a certain article for an agreed price, and fails to do so, the intended purchaser may procure the same at its reasonable value in the market, and have his action against the promisor for the difference between the price for which he was to have such article and the price he was obliged to pay for it.
Assignments of Error.
The remaining alleged errors which have been considered are held unimportant, and insufficient to require especial notice.
John M. Rees, for appellant.
Lafayette French and A. W. Wright, for respondents.
This is the second appeal of this action. On the former review (73 Minn. 261, 76 N.W. 26), it was reversed for error in the reception of testimony. The suit is maintained to recover the purchase price of a threshing outfit, consisting of a Reeves separator, wind stacker, weigher, and feeder, conditionally sold by plaintiff to defendants. Defendants, subsequent to the last trial, with leave of court, amended their answer, setting up a counterclaim which had not been previously pleaded, but upon which they recovered a verdict in this suit for the amount claimed therein, and this appeal is from the order denying the plaintiff's motion for a new trial.
One George Duffy was plaintiff's agent at Austin for the sale of its machinery. He negotiated with the three defendants, who were partners, for the sale to them of the threshing rig, which was delivered under an agreement signed by two of them. It is as follows:
"July 29, 1895.
Nick Cress, Rob Collins, and P. Bumgart: To one Reeves 36x60 sepr., Nethery's wind stacker, weigher, feeder, for their Adv. sepr., feeder, bagger, and Reeves stacker, $740.00 in cash, on or before Jan. 1st, 1896. If said new rig fails to fill the bill or give satisfaction, Duffy to put on Parson's feeder on Adv. or Reeves at $150, and take away said new rig, and said company of Cress & Co. owes said Duffy nothing.
Robert Collins.
Nicollas Cress."
Upon the trial the agent, Duffy, stated, in explanation of the latter portion of this memorandum, that it was intended to mean that, if the machinery failed to satisfy defendants, plaintiff was to put a Parson's feeder on an old Advance separator, owned by the defendants, for $150, and to take away the new outfit, in which case the defendants were not to pay for the same. Defendants received the machinery, used it for several weeks, and then returned it to the place where it was delivered, refusing to accept it, upon the claim that, after reasonable trial, it failed to give satisfaction, and could not be made to do good work, and they now place their right to recover their counterclaim on the ground that they purchased a feeder in place of the one to be furnished by plaintiff, but were compelled to pay for it $215, or $65 more than by the terms of the written agreement they were to give in case of the failure and return to the vendors of the threshing outfit.
The substantial contention between the parties in this case is practically upon the acceptance by defendants of the machinery set forth in the written agreement. Numerous assignments of error, fifty-seven in number, express in varied forms the points which plaintiff urges to secure a reversal of the order of the trial court. We shall consider such assignments only as seem to be of sufficient merit to require our attention.
Between the first and second trials defendants were allowed to amend their answer by pleading the counterclaim referred to, and, as counsel for plaintiff contends, in other respects substantially changing the nature of the defense. The answer upon which the case was previously tried alleges a conditional sale to the defendants, with a privilege to return the property if it failed to give satisfaction, while the amended answer alleges facts showing a right to refuse to accept the machinery if it failed to give satisfaction within a reasonable time. The amendment was allowed, and in passing upon this matter we need only remark, what has already been held by this court, that such amendment was within the exercise of a sound judicial discretion by the trial court, and we see no reason in this case for interfering with its order in this respect. Burke v. Baldwin, 54 Minn. 514, 56 N.W. 173.
It is insisted, however, that by the first answer defendants elected to treat the transaction as a sale, and are bound by that election. If we are able to discriminate between the subtle distinctions of counsel between the first and second answers, -- between a conditional sale, with right in vendee to a return if not satisfactory, and an agreement to purchase if satisfactory, -- which is somewhat difficult so far as practical results are concerned, we could not hold that admissions in a pleading which is afterwards amended were so controlling as to conclusively bind the party making them. Under our system of procedure, and the well-settled rules authorizing amendments, the court exercises a broad, and sometimes generous, latitude in this respect, and it is the pleading in such cases, as finally adopted, that contains the only binding and the conclusive admission upon the parties; and, while previous allegations may be treated as...
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