Skoog v. Mayer Brothers Company

• Decision Date: 20 June 1913
• Docket Number: 18,153 - (192)
• Citation: 142 N.W. 193,122 Minn. 209
• Parties: H. O. SKOOG and Others v. MAYER BROTHERS COMPANY
• Court: Minnesota Supreme Court

142 N.W. 193

122 Minn. 209

H. O. SKOOG and Others v. MAYER BROTHERS COMPANY

Nos. 18,153 - (192)

Supreme Court of Minnesota

June 20, 1913

Action in the district court for Blue Earth county to recover $3,900 for breach of warranty upon the sale of a boat dredge. The answer alleged that the machine was constructed in accordance with the contract and specifications and defendant complied with all the other requirements of the contract and alleged that plaintiffs accepted the machine and operated it in the year 1911. It also alleged that plaintiffs were inexperienced in operating a dredge machine and did not employ competent men to operate the same, and, if plaintiffs had any trouble in operating the machine, it was caused wholly by operating it without competent help. The case was tried before Pfau J., who denied defendant's motion for a directed verdict and a jury which returned a verdict of $1,500 in favor of plaintiffs. From an order denying defendant's motion for judgment notwithstanding the verdict or for a new trial, it appealed. Affirmed.

SYLLABUS

Sale -- warranty.

1. A written contract for the sale of a boat dredge, providing, among other things, that the vendor would furnish an expert who would show the dredge to be of a certain capacity, construed, and held to be a warranty of the capacity of the dredge.

Unpaid notes -- action upon breach of covenant.

2. An action can be maintained upon a covenant of warranty in a contract of sale though the notes given for the purchase price are unpaid.

Conditional sale -- election of remedies by vendor -- action upon warranty.

3. A conditional sale, when title is reserved in the vendor until payment, gives the vendor an election to retake the property upon default or to sue for the price, and the assertion of one remedy is the waiver of the other; and when the vendor brings suit for the purchase price the sale becomes absolute and an action may be brought upon the warranty. Whether an action for general damages on a warranty in a conditional sale can be maintained, while the sale remains conditional, is not determined.

Complaint construed.

4. The complaint is construed to show that the plaintiffs accepted the dredge, and that they could sue on the warranty, though there was an allegation that they did not accept.

Breach of warranty -- measure of damages.

5. The measure of general damages for the breach of a warranty is the difference between the value of the thing warranted and its value if as warranted; and a charge to that effect is not rendered erroneous, as against the defendant, though it refers to proof of defective construction as if necessary to a recovery on the warranty.

New trial -- evidence.

6. Evidence erroneously received, tending to show damage resulting from delays caused by defects in the dredge, held not to require a new trial because prejudicial.

C. O. Dailey, for appellant.

S. B. Wilson and G. G. Goodwin, for respondents.

OPINION

DIBELL, C.

This action was brought to recover damages for the breach of a warranty upon the sale of a boat dredge. Plaintiffs had a verdict for $1,500. Defendant appeals from the order denying its alternative motion for judgment or for a new trial.

The facts of the case are not complicated. Some confusion has come from an inadequate analysis. The action can be supported only as one for the breach of a covenant of warranty. The important question is whether there is a warranty. No other question of difficulty is presented. Most of the other questions, though properly here, need not have arisen.

1. The plaintiffs claim that there is in the contract an express warranty of the capacity of the dredge to dig 600 cubic yards of earth per day of 10 hours. There is no question of implied warranty.

The contract, so far as material to the determination of whether a warranty of the kind stated is a part of it, is as follows:

"The parties of the first part in consideration of the payments and agreements of the parties of the second part, hereinafter specified, agree and do hereby sell and agree to deliver to said parties of the second part, one new Mayer Boat Dredge of the latest pattern of one cubic yard capacity, said machine to conform to the standard specifications accompanying this contract and furnished by the said parties of the first part.

"The parties of the first part hereby agree to furnish an expert at their own cost and expense to make a demonstration of the rated capacity of said machine, and they agree that said expert shall show said machine to be capable of digging six hundred cubic yards of dirt per day of ten (10) hours, without straining said machine and under normal working condition in digging where the ground is not frozen and where the yardage shall be not less than one hundred and seventy yards per one hundred running feet, said demonstration to take place during the first fifteen days' operation of the machine. * * *

"The parties of the first part agree to replace such portion of machinery at their own cost and expense, as may break during transportation, removal, unloading and erection of said machine and to replace free of charge F. O. B. Mankato, Minn., to second parties all parts of machinery which may break by reason of flaws or defects in material and workmanship for sixty days. * * *

"Parties of the second part hereby agree to accept the said machine at the end of fifteen days' trial and otherwise found according to this contract and specifications hereto attached."

To constitute a warranty, it is not necessary that the word "warranty" or a precise equivalent be used. It is enough if the vendor definitely undertakes that the thing sold shall be of a certain kind or quality.

The construction of the contract presents some difficulty.

It is clear enough that the defendant undertook to furnish a dredge capable of digging 600 cubic yards of dirt in a 10-hour day. It was intended that the plaintiffs should get just such a dredge. The contract should be construed to intend...