Spickler v. Marsh

• Decision Date: 18 June 1872
• Citation: 36 Md. 222
• Parties: HENRY M. SPICKLER v. JAMES S. MARSH, and others, trading as MARSH BROTHERS.
• Court: Maryland Court of Appeals

36 Md. 222

HENRY M. SPICKLER v. JAMES S. MARSH, and others, trading as MARSH BROTHERS.

Court of Appeals of Maryland

June 18, 1872

APPEAL from the Circuit Court for Washington County.

This suit was brought by the appellees to recover from the appellant the price of a reaper and mower sold to him.

Exception: The plaintiffs offered the following prayers:

1. If the jury find that the plaintiffs, by their agent, sometime in June, 1864, sold to the defendant one of their reapers commonly called the "Combined Reaper and Mower and Self-Raker," for the sum of $185, upon the terms following, to wit: That the said reaper was to answer the purpose of mowing, cutting grain and self-raking it, and that the defendant was to take it from the railroad in Greencastle, where it then was, to his farm, and try it by cutting his crop of grass, and if it suited him, then to try it in his wheat at the approaching harvest, and after such trials, if it did not suit him or answer his purpose, then the defendant was to return the same to the railroad in Greencastle, from whence he took it. And shall further find that the defendant took such machine to his farm under the contract aforesaid, if so found, and tried it, and did not return it to the railroad in Greencastle from whence he took it. And shall further find, that afterwards, sometime in the month of September or October following, the plaintiffs called upon the defendant for a settlement for such reaper and the defendant declined to settle therefor, but it was then understood and agreed between them that the defendant should put the said machine in the dry, keep it till the next harvest and try it, and if it suited him he should pay for it, and if not he should return it, and that the defendant did so keep the machine and never returned it, then the plaintiffs are entitled to recover, although the jury should further find that said reaper did not answer the purpose.

2. [Substantially the same as the first to the words "settle therefor," whence it proceeded as follows:] And then and there it was further agreed between the plaintiffs and defendant, that if he continued farming he should put such machine in the dry and try it at the harvest of 1865, and if it then worked, then he was to pay for it and if it did not work, then to return it. But shall further find, that afterward and before said harvest of 1865, the defendant sold said machine, without the consent of the plaintiffs or their agent, to a third party. And shall further find, that the defendant never tried the same at such harvest in 1865, and that he never did return it, then the said sale is an election on the part of the defendant to make the said machine his absolute property, and the plaintiffs are entitled to recover, although the jury shall believe the machine did not answer the purpose, and that the defendant discontinued farming.

The Court (MOTTER and PERRY, J.) granted the prayers, and the defendant excepted; and the verdict and judgment being against him, he appealed.

The cause was argued before BARTOL, C.J., STEWART, BRENT, BOWIE, GRASON, MILLER and ROBINSON, J.

Attorney General Syester, for the appellant.

The facts embodied in the plaintiffs' prayers present only a partial view of the case. The defendant proved that the machine was " warranted. " That at the time of the sale or contract, " the qualities and capacities of the machine were represented to be such that it would give satisfaction. " That it would cut or mow grass, and reap and rake off in a satisfactory manner the grain cut in the fields. And also that such representations were "made for the purpose of assuring the defendant of their being true of the machine, and as inducements to him to purchase." And also that " the representations aforesaid were received and relied on" by the defendant, "and formed the inducement to the contract. " There was evidence also to show that the machine was worth less than the contract price. That it " would not mow in grass." That it did "not rake off the grain," &c.

All these facts were ignored by the Court as having nothing to do with the case. But the appellant is of the opinion that they were most material and important to be considered by the jury.

The representations made for the purpose of assuring the defendant of the qualities of the machine, and as inducements to him to purchase, together with the reliance of the defendant upon them, and their forming the inducement to the purchase, constituted an express warranty that the machine would operate as represented. Osgood vs. Lewis, 2 H. & G., 495, 518; Cross vs. Gardner, 1 Carth., 90; Medina vs. Stoughton, 1 Ld. Ray., 593; Pasley vs. Freeman, 3 Term R., 57.

If an express warranty were actually made, and there is a breach of it, as the proof shows in this case, the defendant was not bound to return, or offer to return the property.

It is plain, from the instructions given by the Court, that it proceeded on the idea that the defendant's responsibility was made clear and certain for the value of the machine, because there was neither a return nor offer to return. But that would have amounted to a recission of the contract; whilst it was wholly overlooked by the Court, that the defendant could stand on his contract--affirm it, and offer the breach of the warranty in abatement or recoupment of the plaintiffs' demand.

The appellant stands on his contract; had he paid the money, then, in an action for breach of the warranty, (which is but an affirmance of the contract,) the measure of his damages would be "the difference between its value with the defect warranted against, and the value which it would have borne without the defect." Mayne on Damages, 88; Lane, Adm'x., vs. Lantz, 27 Md., 216.

But he is not driven to his cross-action; he may recoup his damages in an action against him for the contract price. This is now the well established doctrine, and is always allowed in order to prevent circuity of action. Franklin vs. Long, 7 G. & J., 407; Taymon vs. Mitchell, 1 Md. Ch. Dec., 496; Beall vs. Pearre, Adm'r., 12 Md., 550, 557; Warfield vs. Booth, 33 Md., 63, 71.

The...