Sycamore Marsh Harvester Co. v. Sturm

• Decision Date: 30 August 1882
• Citation: 13 N.W. 202,13 Neb. 210
• Parties: SYCAMORE MARSH HARVESTER CO. v. STURM.
• Court: Nebraska Supreme Court

13 Neb. 210

13 N.W. 202

SYCAMORE MARSH HARVESTER CO.

v.STURM.

Supreme Court of Nebraska.

Filed August 30, 1882.

Error from Hall county.

Batty & Ragan, for plaintiff.

Thompson Brothers, for defendant.

COBB, J.

This action was brought on a promissory note, executed by the defendant in error to the plaintiff in error, for the sum of $50 and interest. In the court below the defendant answered that the note sued on was made and executed by the plaintiff under a contract made and executed between Stabler & Deisher, as agents of the plaintiff, and the defendant; that by virtue of said contract said plaintiff conditionally sold and delivered to said defendant a certain combined reaper and mower; that at the time of making said contract said plaintiff agreed to set said machine up in running order by the time said defendant's grain of 1878 was ready to be harvested, which they utterly refused and neglected to do, after said defendant had given them due notice that said grain was ripe; that at the time of entering into the contract above mentioned, the plaintiffs, by their agents, Stabler & Deisher, gave a warranty to said defendant, as follows, to-wit:

“HASTINGS, NEBRASKA, September 5, 1877.

We warrant Wheeler No. 6, combined reaper and mower, bought of us, to be a good grain-cutting machine and a good mowing machine. Should the machine fail to do so as warranted, then and in that case we are to be notified and given time to make the machine work. Should we fail to make the machine work, then we agree to take it back.

STABLER & DEISHER.”

--That said machine was not a good grain-cutting machine; that plaintiff was notified by said defendant and given time to make said machine work; that said plaintiff refused and neglected and entirely failed to make said machine work; that said plaintiff having failed and neglected to make said machine work as it agreed, said defendant gave said plaintiff due notice to take it back; that said machine has, ever since, been at plaintiff's disposal and subject to its order, etc. The said answer also contains a counter-claim on the part of said defendant, wherein, after repeating the terms of the agreement of the said plaintiff to set up said machine in good running order in due time to cut and harvest defendant's grain of 1878, the giving of due notice by the defendant to the plaintiff that the said grain would be ready to harvest in a few days thereafter, and that said plaintiff would be expected to fulfill its aforesaid agreement, which the said plaintiff entirely neglected and failed to do, alleges that said defendant, by reason of the above-mentioned neglect and failure on the part of the plaintiff to perform its part of the contract after using all due diligence, sustained the following damages, to-wit: (1) In loss of time for himself, two hands, and one team, in the sum of $50; (2) in loss of grain out of crop of 1878, three bushels to each acre on 160 acres, worth $108; (3) in being compelled to hire extra help and another machine to harvest said grain of 1878, in the sum of $35; (4) that said plaintiff now owes this defendant, for money had and received on or about the first day of January, 1878, the sum of $30, with interest at the rate of 10 per cent. per annum, etc. The cause was tried to a jury, who returned a verdict for the defendant for $100, for which sum judgment was rendered in his favor.

The plaintiff, in the motion for a new trial, as well as in its petition in error, assigns 26 errors. Most of these arise upon the admission of testimony objected to on the part of the plaintiff, and will not require an examination in detail in order to arrive at a disposition of the case. The plaintiff objected to the introduction in evidence, on the part of the defendant, of the warranty signed by Stabler & Deisher, above set out, on the ground that it was the individual obligation of said Stabler & Deisher, and not the obligation of the plaintiff. This objection we do not think was well taken. Stabler & Deisher were the agents of the plaintiff for the sale of its harvester. They had traded one of the plaintiff's harvesters for the Wheeler combined machine, presumably within its authority as agents. The notes of the defendant for the price of the machine were taken in the name of the plaintiff, who sued upon the one described in its petition. The warranty was a part of the consideration of the notes, and by claiming the benefit of the transaction, as evidenced by the suit on one of the notes, the plaintiff is held to have ratified it in its entirety, including the warranty. The authorities cited by counsel for defendant, as well as reason and justice, fully sustain this position. There was, then, no error in the refusal of the court below to charge the jury that the said warranty was the warranty of Stabler & Deisher, and not of the plaintiff.

The written warranty having been received in evidence, and being held to be the contract of the plaintiff, its terms, fairly construed, become the law of the case. Aside from the general principle, as stated by Mr. Justice Parker in the leading case of Stackpole v. Arnold, 11 Mass. 27,--“that when parties have deliberately put their engagements in writing in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it shall be presumed that the whole engagement of the parties, and the extent and manner of their undertaking, was reduced to writing, so that oral testimony of a previous colloquium between the parties, or of conversation or declarations at the time when it was completed, or afterwards, would tend in many instances to substitute a new and different contract for the one which was really agreed upon,” etc.,--it is equally repugnant to...