Seiberling v. Brauer

• Decision Date: 25 September 1888
• Citation: 39 N.W. 591,24 Neb. 510
• Parties: SEIBERLING ET AL. v. BRAUER.
• Court: Nebraska Supreme Court

24 Neb. 510

39 N.W. 591

SEIBERLING ET AL.

v.BRAUER.

Supreme Court of Nebraska.

September 25, 1888.

Syllabus by the Court.

Upon an examination of the testimony the verdict of the jury upon questions of fact is sustained, as not being so clearly and manifestly against the weight of the evidence as to require a reversal by the supreme court.

Where a reaper and binder was purchased under a printed warranty to the effect that, if properly managed, it would cut one acre per hour, or ten to twelve acres per day, in a workman-like manner, the purchaser being allowed to cut five acres on trial, and, in case anything proved defective, due notice should be given to the vendor's agent, and time allowed to send a person to put it in order; and that, if it did not work, and the fault was in the machine, it would be taken back, or the defective parts replaced, or the money paid for it refunded,--it was held, that the instruction of the trial court to the jury, in substance, that if there was a warranty and a breach thereof, as alleged in the answer, the defendant had the right within a reasonable time to return the harvester, and rescind the contract, was not error, it having been fully proven by both parties that notice was given of the alleged defects, and time allowed to plaintiff to put the machine in order.

Error to district court, Pawnee county; BROADY, Judge.S. P. Davidson, for plaintiff in error.

Humphrey & Lindsay, for defendant in error.

REESE, C. J.

This action was instituted in the district court of Pawnee county, and was upon three promissory notes executed by defendant to plaintiff, representing a part of the purchase price of an Empire reaper and binder, manufactured and sold by plaintiff. The notes described in the petition are one for $85, due on the 1st day of January, 1884; one for $85, due on the 1st day of January, 1885,--both dated the 16th day of July, 1883; the other for $37, due on the 1st day of January, 1885, and dated July 30, 1883. A defense was made to the two first notes only. The answer alleged the giving of the notes for the machine referred to, the terms of a warranty of the machine by plaintiff, and a breach thereof; with the further allegation that the machine was improperly constructed, would not work, and was absolutely worthless. The allegations of the answer were denied by the reply. Trial was had to a jury, which returned a verdict in favor of defendant upon his defense to the two notes referred to. Plaintiff alleges error, and brings the case to this court for review. The testimony shows that, in connection with the sale and delivery of the machine to defendant, plaintiff's agent delivered to defendant a printed warranty, of which the following is a copy: “ Warranty. All our Empire machines are warranted to cut, if properly managed, one acre per hour, or ten to twelve acres per day, in a workman-like manner. The purchaser is allowed to cut five acres on trial; and, in case anything proves defective, due notice must be given to us or our agent, and time allowed to send a person to put it in order. If it does not work after this, and the fault is in the machine, it will be taken back, or that part which proves to be defective will be replaced, or the money paid for it refunded. It is also warranted to be well made, of good material, and, when properly used, not liable to get out of order. Continued possession, without giving notice as above, will be deemed conclusive evidence that the machine fills the warranty. [Signed] J. C. WALTMATH, Agent. J. E. SEIBERLING.”

The principal contention of plaintiff in error is that the verdict of the jury is unsupported by and is against the clear weight of the testimony. While it is true that the testimony introduced by defendant in error is somewhat unsatisfactory, and that the preponderance seemed to be in favor of plaintiff in error, yet we are unable to see that the verdict should, for that reason, be set aside. If the testimony of defendant in error was true,--and of that the jury were the sole judges,--there is no doubt but that the verdict is correct. It is, in substance, that he and plaintiff's agent set up the machine in the afternoon, and commenced cutting around a field of grain; that they had gone three times around, when, by reason of the lateness of the hour and threatened rain, they were compelled to desist; that in that trial the machine was unsatisfactory, but upon the assurance of the agent of plaintiff in error that everything would be made to work correctly, the settlement was made, and the notes given; that upon the next trial, after running about half an hour, the machine broke down, rivets were broken off, castings were burst, and the cog-gearing, having been improperly adjusted, began to cut and wear; that the agent was notified of the defects, and a number of efforts were made to cause the machine to work as warranted; that,...