Sharples Separator Co. v. Skinner
| Decision Date | 06 May 1918 |
| Docket Number | 2978. |
| Parties | SHARPLES SEPARATOR CO. v. SKINNER. |
| Court | U.S. Court of Appeals — Ninth Circuit |
The defendant in error brought an action against the plaintiff in error to recover damages for breach of warranty. The plaintiff therein alleged that he was the owner of a herd of dairy cows; that on January 3, 1914, the defendant sold and delivered to him a certain mechanical milker, and warranted the same to be in all respects fit and proper for use in milking the plaintiff's cows, and that the use thereof would not in any way injure said cows, or decrease the amount of milk they would give, if the same were operated in accordance with the defendant's instructions; that the plaintiff had no knowledge regarding said mechanical milker other than said representations and warranties of the defendant, and believed the same, and relied thereon, and made the purchase solely by reason thereof; that on February 5, 1914, the defendant installed said mechanical milker for plaintiff, and declared that plaintiff could thereafter safely use and operate the same for milking his cows; that plaintiff did use said mechanical milker in strict conformity with the defendant's instructions, but the same was not fit for such use, and bruised and injured the teats and udders of many of the plaintiff's cows, and greatly lessened the amount of milk given by all thereof; that as soon as the plaintiff discovered these facts he discontinued the use of said milker. The plaintiff further alleged that on two subsequent trials of said milker, made at the special instance of the defendant and upon the renewal of the defendant's former representations and warranties, and conducted solely by the defendant itself, the use thereof greatly injured said cows, and permanently ruined many of them. The plaintiff demanded judgment for the sum of $4,512. The jury returned a verdict for the plaintiff in the sum of $3,763.92, and judgment was rendered in accordance therewith.
Willard P. Smith, of San Francisco, Cal., Bicksler, Smith & Parke, of Los Angeles, Cal., and J. J. Dunne, of San Francisco, Cal for plaintiff in error.
Phil D Swing, of El Centro, Cal., and M. A. Thomas, of San Francisco, Cal., for defendant in error.
Before GILBERT, ROSS, and HUNT, Circuit Judges.
GILBERT Circuit Judge (after stating the facts as above).
A large portion of the very numerous assignments of error, as well as a large portion of the defendant's voluminous brief, is devoted to discussion of the evidence, under the contention that the same was insufficient to justify the verdict of the jury, and that the verdict was contrary to the court's instructions, thus disregarding the rule that an appellate federal court is prohibited from re-examining any fact tried by a jury otherwise than according to the rules of the common law, and has power to review only the rulings of the trial court. The defendant at the close of the testimony having made no motion for an instructed verdict, on the ground of the insufficiency of the evidence to sustain a verdict against it, we are precluded from considering any questions other than the rulings of the trial court in excluding or admitting evidence, and in giving or refusing instructions to the jury.
Error is assigned to the admission in evidence of acts of one Briggs, who was in the employment of the defendant. It is urged that such evidence was inadmissible to bind the defendant, for the reason that Briggs was not shown to be the defendant's agent. The testimony related to the third attempt to use the milking machine, in October, 1914. The complaint had alleged that the third attempt was made in pursuance of the defendant's own request, and that it was carried on under the defendant's sole care and control. This the answer denied. The proof was that Briggs, who was in the employment of the defendant, came to the plaintiff, and that he and Reed, who was also an employe of the defendant, made the arrangements for the last trial of the machine. The defendant took the deposition of one Frank, its sales manager, whose duties were to conduct the sales work and look after the business generally. He testified that Briggs was in the employment of the defendant, and that he sent Briggs to the plaintiff in October, 1914, to see if he could not overcome the plaintiff's difficulty, and that Briggs had instructions to follow out his usual custom or practice in attempting to satisfy customers, or to correct faulty installation and straighten out trouble. This was sufficient, prima facie, to show that Briggs was the agent of the defendant, and was acting under its instructions. If such was not the fact, the defendant had ample opportunity to disprove it. It was not error, therefore, to admit evidence of Briggs' acts, or of the written agreement which was made between the plaintiff and the defendant, by Briggs, as its agent. The provision therein that the defendant would pay the plaintiff 'for any damage done to his cows by the use of the machine while in the hands of their operator' went no further than to express the liability that the law imposed upon the defendant in the absence of such an agreement.
Errors are assigned to the admission of testimony as to acts of Reed. It is undisputed that Reed, claiming to represent the defendant, came to the plaintiff's dairy and installed the machine. He testified that he was in the employment of the defendant, and there was no evidence to the contrary. At the conclusion of the last trial of the machine Reed telegraphed to the defendant, stating that the effort had been a failure, that to continue the use of the machine would be taking too big a risk, and that to quit would be the safest way, 'or we will have too big a loss according to our agreement. ' The fact of the failure of the third trial was amply proven by other witnesses, and there was nothing harmful to the defendant in the telegram, unless it be the intimation that the machine might injure the cows. But, Reed having been sent as the agent of the company to demonstrate the machine, it was not without the scope of his authority to report, as he did, at the conclusion of his operations, and the report was admissible as of the res gestae. La Abra Silver Mining Co. v. United States, 175 U.S. 423, 498, 20 Sup.Ct. 168, 44 L.Ed. 223.
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