Sandwich Manuf'g Co. v. Feary
| Decision Date | 06 July 1887 |
| Citation | 33 N.W. 485,22 Neb. 53 |
| Parties | SANDWICH MANUF'G CO. v. FEARY AND ANOTHER. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
The evidence examined, and held not sufficient to sustain the verdict.
A verdict so clearly wrong as to induce the belief on the part of the reviewing court that it must have been found through mistake, or some means not apparent in the record, will be set aside and a new trial awarded.
Error from district court, Seward county.
Leese Bros. and R. S. Norval, for plaintiff.
D. C. McKillip and R. P. Anderson, for defendants.
This action was commenced in the district court of Seward county by the plaintiff against the defendants for the agreed price of two Sandwich Reliance harvesters and Appleby binders, which it alleged had been ordered of it by the defendants, to be paid for when the said machines had been tested and found to do good work; and which it also alleged had been delivered, and that the plaintiff had performed all of the conditions of the said order, etc. I copy the answer of defendants at length:
“ First Defense. They admit the execution and delivery of the order set forth in the petition, and deny each and every other allegation in petition.
Second Defense. Said order in petition referred to was given upon the therein expressed condition, and it was by its terms agreed and understood between the parties that the purchase of said harvesters and binders should not be considered absolute; that the sum of $480 should in nowise be due and payable until said machine had been fully tested, and found to do good work; that the machines have by defendants been fully and faithfully tried and tested by actual trial in the field, and that said machines have wholly failed to work, or to serve for the purpose of cutting and harvesting grain; and that these defendants have been wholly unable to cause said machines to work, or to use or operate the same for the purpose aforesaid, by reason of which the said machines are wholly worthless, and of no value whatever to defendants.
Third Defense. On the twenty-fifth of June, 1883, as an express condition of the sale of said machines, and in consideration of giving said written order, and as a part of the same agreement and transaction, plaintiff made, executed, and delivered to defendants its certain written warranty of said machines and binders. Said written warranty is attached hereto, marked ‘Exhibit A,’ and made a part of this answer. That, by the terms of said warranty, plaintiff fully warranted each of said machines to be well made, of good material, and durable with proper care, and to be capable of cutting from twelve to eighteen acres per day; and if, upon starting said machines, they should in any way prove defective, or fail to work, said plaintiff agrees, upon notice of said failure, to put said machines in order, and to replace any defective part; and that, if then the said machines could not be made to work, the same shall be returned by the purchaser, free of charge, to the place where received, and the payment of money or notes refunded, thereby ending all further responsibility on the part of either party. The said machines are not well made, nor of good material, and are not durable, and are not capable of cutting from twelve to eighteen acres per day; and, after having been fully and faithfully tested and tried by these defendants, proved defective, and wholly failed to work or to serve for the purpose of cutting and harvesting grain, of which failure and defects defendants duly notified and advised the plaintiffs. Defendants, according to the written warranty, returned said machines to plaintiff, and have fully performed all of their duties under the warranty Plaintiff failed, neglected, and refused, although often requested, to put said machines in order, or to refund the payment of said sum of $480, or to perform any of their duties under the warranty.
The Sandwich harvester machines are warranted to be made of good material, and durable with proper care. The reaper and mower is warranted to be capable of cutting an acre of grain or grass per hour with one team. The Sandwich harvester and binder is warranted capable of cutting and binding, in a workman-like manner, from 12 to 18 acres per day, with sufficient team. If, upon starting the machine, it should in any way prove defective, or fail to work, the purchaser shall give prompt written notice to the agent from whom he purchased it, and allow sufficient time for a person to be sent to put it in order, and the defective part, if any, replaced. ( The purchaser rendering necessary and friendly assistance.) If then it cannot be made to work, the machine shall be returned by the purchaser, free of charge, to the place where received, and the payment of moneys or notes will be refunded, ending all further responsibility on the part of either. Continued possession of the machine, or failure to give notice as above, shall be deemed conclusive evidence that the machine fills the warranty.
SANDWICH M'F'G Co., Sandwich, Ill.”
To this answer there was a reply by the plaintiff denying the facts therein stated, except as to the giving of the warranty therein set out, which it admitted.
There was a trial to a jury, with a verdict and judgment for the defendants. The plaintiff brings the cause to this court on error. In the petition the following errors are assigned:
It is not deemed necessary to take up or discuss these assignments in detail in order to reach what I think to be the controlling point in the case. An examination of the pleadings and evidence leaves no doubt of the purchase, by the defendant from the plaintiff, of two Sandwich harvesters and binder machines for the sum of $480 for the two; that they were sold and delivered to and received by the defendants upon an express written warranty, and were promptly returned by them, upon the ground that they did not, upon trial, comply with the terms of the warranty; and that the agent of the plaintiff refused to receive the machines when so returned, on the grounds that the terms and conditions of the warranty had not been complied with on the part of the defendants in respect to giving the notice therein provided for, and allowing sufficient time for a person to be sent to put the machines in order, and replace the alleged defective part, etc.
There is some conflict in the evidence bearing upon the above points of the case; but, as the jury found for the defendants, their evidence, where there is a conflict between it and that of the plaintiff, must be deemed to be true, and form the basis of our consideration.
It appears from the testimony of George E. Feary, one of the defendants,--and as to this there is no conflict,--that on the seventh day of July he took one of the machines to his place. It appears, at or about the same time, the other machine was also taken to the farm of the other defendant. This was Saturday. On Monday morning, the ninth day of July, pursuant to an agreement between witness and plaintiff, two men, or, as witness calls them, “boys,” Cummins and Neihardt, came to witness' place to assist him in setting up and starting the machine. I quote from his testimony:
“In the morning I opened the box, and commenced to set the machine up, and after the boys came we went to work. There were three of us to work on it till noon. I got my hired man to assist. We were in the field by half past 3 or 4 o'clock, and all of us were present when the machine was tested,--myself, my hired man, young Cummins, and Dan Neihardt,--and we put the machine in a piece of barley of 15 acres, and went three times around it. We were from half past 3 until nearly sundown trying that machine. We would go a little ways, and try to adjust it, and go a little ways again and adjust reel and cutter-board, and failed to make it work. * * *
Question. Tell as near as you can where the machine failed to work? Answer. In the first place, it did not elevate it well. The grain came up endways. In the second place, this butt-board, as they call it, they could not adjust it so it put the grain to the binder. It would run up between the buttboard and the grain-reel. It did not seem to get the grain to its place. Q. State what kind of work the machine did there? A. If you allow me to judge, it did very poor work. Q. In what respect? A. It did not bind very well. Most or quite a number of bundles run out between the butt-board and the grain-reel, and did not catch it at all. Q. By a juror. Was the barley very short? A. In some places it was pretty tolerable short, and in some places it was not. It was more than 18 inches high the shortest of it. * * *
Mr. Cummins and Neihardt claimed to me that the barley was too green was the reason why it was not elevating it. They insisted on coming back and trying it again, and I told them I did not think it was worth while if they claimed they could not adjust the machine and make it do good work, and I...
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