Rowe v. Emerson-Brantingham Implement Co.

• Decision Date: 10 October 1921
• Docket Number: No. 4446.,4446.
• Parties: ROWE ET AL. v. EMERSON-BRANTINGHAM IMPLEMENT CO.
• Court: Montana Supreme Court

61 Mont. 73

ROWE ET AL.
v.
EMERSON-BRANTINGHAM IMPLEMENT CO.

No. 4446.

Supreme Court of Montana.

Oct. 10, 1921.

Appeal from District Court, Chouteau County; John W. Tattan, Judge.

Action by Wearn Rowe and others against the Emerson-Brantingham Implement Company. Judgment for defendant, and from an order refusing a new trial, plaintiffs appeal. Affirmed.

H. S. McGinley, of Ft. Benton, for appellants.

McKenzie & McKenzie, of Great Falls, for respondent.

COOPER, J.

This action was brought to recover damages for a breach of warranty of the quality and fitness of a threshing machine of a specified make, and to cancel the notes given for its purchase price. The original written order was executed September 6, 1915, and contained the usual provisions intended to safeguard the interests of the seller. The answer admits the sale, but denies the breach. It also sets forth a counterclaim in which it is alleged that the notes sought to be canceled were executed and delivered to evidence the purchase price of the machine, and that the mortgage thereon was given as security for the notes. A decree foreclosing the mortgage is also asked.

Appellants' counsel limits the inquiry to the single question of the admissibility of oral representations, not embodied in the ultimate written contract, warranting the capacity of a thresher of a specified make to thresh and clean alfalfa. The warranty set forth in the contract was that the thresher was “well made, of good material, and with proper use and management” would “do as good work as any other machine of the same size, manufactured for a like purpose.”

The trial court, upon objection, excluded all evidence touching the prior statements and representations of the local agent in making the sale, and denied the plaintiffs' offer to prove the following facts: That the plaintiffs had no previous experience with a machine of the character in question; that their attention was not called to any portion of the written contract, except those designating the machinery and attachments purchased; that they had no opportunity to examine the machinery before its receipt, and that, while it was being operated by one of defendant's experts, one of the screens was blown to pieces owing to defects in its manufacture; that prior to the threshing season of 1916 the plaintiffs notified the defendant, through its local agent, of that fact; that defendant agreed at divers times to replace the defective parts and to put the thresher in running order so that it would thresh and clean alfalfa seed; but that up to the time of the commencement of the action, defendant having failed to live up to its agreement, plaintiffs notified it that they would consider the contract at an end by reason of the breach of warranties, and that they (the plaintiffs) have since that time held the machine “subject to instructions from the defendant as to where to ship and deliver the same.” Thereupon the plaintiffs rested. The court adjudged the aggregate amount of the notes to be due and owing...