The Minneapolis Threshing Machine Company, a Corp. v. Huncovsky

• Decision Date: 19 July 1923
• Citation: 194 N.W. 830,49 N.D. 1086
• Court: North Dakota Supreme Court

194 N.W. 830

49 N.D. 1086

THE MINNEAPOLIS THRESHING MACHINE COMPANY, a Corporation, Appellant, v. JOSEPH HUNCOVSKY, Respondent

Supreme Court of North Dakota

July 19, 1923

From a judgment of the District Court of Morton County, Lembke, J.

Plaintiff appeals.

Reversed and remanded for a new trial.

Judgment reversed, and a new trial ordered.

Lawrence Murphy & Nilles, for appellant.

"It is well settled that a person who signs an instrument without reading it, when he has the opportunity to read it and can read, cannot avoid the effect of his signature merely because he was not informed of its contents." 12 R. C. L. p 386; Standard Mfg. Co. v. Slot, 121 Wis. 14, 98 N.W 923, 105 Am. St. Rep. 1016; Pratt v. Metzgar (Ark.) 95 S.W. 451; Quimby v. Shearer, 56 Minn. 534, 58 N.W. 155; Sanborn v. Sanborn, 104 Mich. 180, 62 N.W. 371.

We concede that it is the general rule that trial courts are vested with a proper judicial discretion regarding the allowance or refusal of amendments of pleadings and their rulings will not be disturbed unless an abuse of such discretion is shown. Flamer v. Johnson, 36 N.D. 214; Beachamp v. Retail Merchants Asso. 28 N.D. 483.

"Pleadings are for the purpose of advising the parties to an action what the opposite party relies on, that he may be ready to meet it in evidence on trial." Parliman v. Young, 2 Dak. 175, 4 N.W. 143; Marshall v. Haney, 9 Gill. 258; Hong Sling v. Scottish Union & Nat. Ins. Co. 7 Utah, 441, 27 P. 171; Blum v. Bruggemann, 58 A.D. 377, 68 N.Y.S. 1066.

"Pleadings are presumed to be statements in legal form of those facts constituting the charge or defense of the party, by means of which issues between the parties to be tried are defined, and are necessary to inform the court what issues are raised and which are proper." Cook v. Merritt, 15 Colo. 212, 25 P. 177.

"Pleadings are the allegations made by the parties to a civil or criminal case, for the purpose of definitely presenting the issues to be tried, and to determine between them." Tucker v. United States, 151 U.S. 164, 38 L. ed. 112, 14 S.Ct. 299, 301.

"Under the civil law there was on a sale for a fair price an implied warranty of title and that the goods sold were sound, but under the common law there is a clear distinction between the responsibility of the seller as to title and as to quality; the former he warranted, the latter, if the purchaser had opportunity to examine, he did not." 2 Kent, 487; 1 Bouvier's Law Dict. p. 438; Barnard v. Kellogg, 10 Wall. 383, 19 L. ed. 987; James v. Bocarg, 49 Ark. 289; Hight v. Bacon, 126 Mass. 12, 30 Am. Rep. 640.

Norton & Kelsch, for respondent.

That where in the trial of an equitable notion a jury is called and certain issues are submitted to and are tried by a jury, the procedure governing trials by jury in civil cases and the practice applicable thereto in appeals therefrom to the supreme court, applies to and must control the procedure on appeal in the case at bar, and that the rights of the appellant in the supreme court must be determined thereby. Peckham v. Van Bergen, 8 N.D. 597.

"We are confronted by the fact that this is an equity case in which a jury was called to determine issues of fact. In such cases as has been shown the ordinary rules of evidence are applicable and this court does not sit to try these de novo." Peckham v. Van Bergen, 8 N.D. 597.

"It is true in an equitable action that the case is in fact tried by the court, for the court ultimately finds the facts, approving or rejecting the jury's findings, but even so it is not a case tried without a jury when a jury is called. It must be held, therefore, that an equity action in which a jury finds part or all of the facts is not an action tried without a jury, within the meaning of § 5630, and is therefore not governed by that section, either as to the manner of trial in the district court or as to the review in this court upon appeal." Spencer v. Biseker, 15 N.D. 143.

"If the motion for judgment notwithstanding the verdict be denied, the supreme court on appeal from the judgment may order judgment to be entered when it appears from the testimony that a verdict should have been so directed." Norton v. Wright, 43 N.D. 116; 2 Hill's Dig. p. 87; First State Bank v. Kelly, 30 N.D. 84; Cruikshank v. St. Paul F. & M. Ins. Co. 75 Minn. 266, 77 N.W. 958; Marquardt v. Rubner, 77 Minn. 442, 70 N.W. 617.

The appellant asserting error has the burden of proving it and must present a record affirmatively showing such error. Erickson v. Wiper, 33 N.D. 195; Jenson v. Clauson, 34 N.D. 637-643; State v. Glass, 29 N.D. 620; Ruber v. Seizler, 37 N.D. 556; Hohler v. Amodt, 31 N.D. 23; International Harvester Co. v. Thomas (N.D.) 176 N.W. 523.

"The rule is well settled that an objection upon one ground does not go to other grounds not stated, and is a waiver of all grounds of objection not specified." Petrie v. Weyman, 35 N.D. 149.

CHRISTIANSON, J. BRONSON, Ch. J., and BIRDZELL, NUESSLE and JOHNSON, JJ., concur.

OPINION

CHRISTIANSON, J.

This is an action to foreclose a chattel mortgage securing the payment of a note in the sum of $ 750, executed and delivered by the defendant to the plaintiff. The complaint is in the usual form. The defendant in his answer asserted that the note in question was executed and delivered in payment of a certain tractor and plows; that the tractor was sold under an express warranty that the same "was in sound and good working condition and that the work done thereby would be just as good as a new tractor;" that such representations and warranties were false and untrue; that upon discovery of their falsity and upon plaintiff's failure to comply with its representations and express warranties, the defendant canceled, rescinded and terminated said contract in all things. The defendant interposed a reply denying the matters set forth in the answer and averring that the machinery in question "was sold by the plaintiff to the defendant under and by virtue of the terms of a certain written order and contract containing all the terms and agreements of said sale, and that it was expressly understood and agreed that said machinery was sold without any warranty whatsoever; . . . that the defendant prior to said sale fully examined said property prior to the delivery thereof and knew its quality and character and accepted the same without any warranty whatsoever and agreed that said property was sold without any warranty, statutory, express or implied, and that the said defendant by an instrument in writing released the plaintiff from any claim for breach of warranty or any other claim whatsoever."

When the case was called for trial in the district court the defendant asked that a jury be impanelled and the issues of fraud and breach of warranty submitted to the jury for an advisory verdict. The request of the defendant was granted over the objection of plaintiff's counsel. After the trial had commenced, in fact, after plaintiff had rested, and during the introduction of evidence by the defendant, defendant applied for leave to amend the answer. The application was granted and the answer amended so as to completely eliminate the theory of rescission and to claim damages for breach of warranty.

Plaintiff's counsel opposed the application to amend the answer on the grounds that the proposed amendments set up an entire new defense and counterclaim; that the plaintiff had prepared to try the issues framed by the original pleadings and was surprised by the proposed amended answer and unprepared to refute the new matter in the amended answer; that in order to properly try the question of breach of warranty it would be necessary for the plaintiff to have the testimony of expert witnesses and of persons who could testify as regards the particular tractor in question, including the former owner from whom the plaintiff had secured the same; that in the event the objection was overruled and the application for leave to amend granted, the plaintiff be granted a continuance so as to enable it to secure the necessary witnesses and evidence.

The jury returned a verdict in favor of the defendant awarding damages in the sum of $ 863.40. Thereafter the trial court made findings in favor of the defendant and ordered judgment in accordance with the verdict. Judgment was entered accordingly and the plaintiff has appealed.

On this appeal plaintiff asks for a trial de novo. He, also, specifies certain rulings of the trial court as error, and presents specifications of alleged insufficiency of the evidence to sustain the verdict of the jury and the findings of the court.

This court cannot try the case anew. It is well settled that the statute permitting equity cases to be tried anew in this court applies only in cases tried in the district court without a jury, and has no application to equity cases wherein a jury is called to pass upon all the issues, or some issue, of fact. Peckham v. Van Bergen, 8 N.D. 595, 80 N.W. 759; Spencer v. Beiseker, 15 N.D. 140, 107 N.W. 189; Merritt v. Adams County Land & Invest. Co. 29 N.D. 496, 151 N.W. 11; Emery v. First Nat. Bank, 32 N.D. 575, 156 N.W. 105.

Plaintiff asserts that the trial court erred in permitting the defendant to amend his answer as hereinabove referred to. The allowance of amendments is a matter resting in the sound judicial discretion of the trial court and its rulings in regard thereto will not be disturbed except where it clearly appears that the judicial discretion has been abused. Leach v. Nelson, 48 N.D. 1046, 189 N.W. 251. The discretion so vested, however, is not arbitrary and is to be exercised in furtherance of justice. See Comp. Laws 1913, § 7482; 31 Cyc. 362, 391.

While in this case we find it unnecessary to determine whether the permission...