Thompson v. Libby

• Decision Date: 15 July 1886
• Citation: 29 N.W. 150,35 Minn. 443
• Parties: THOMPSON v LIBBY.
• Court: Minnesota Supreme Court

35 Minn. 443

29 N.W. 150

THOMPSONvLIBBY.

Supreme Court of Minnesota.

July 15, 1886.

Appeal from an order of the district court, Dakota county, sustaining demurrer, etc.

W. E. Hale, for respondent, Joseph H. Thompson.

Stringer & Seymour, for appellant, Rowland C. Libby.

DICKINSON, J.

This is an appeal from an order sustaining a demurrer to the answer to the amended complaint. The action is for the recovery of the price of logs sold by the plaintiff to the defendant. The defendant asserts as a counter-claim the breach of an implied warranty that the logs were of a merchantable quality. The case shown by the pleadings may be thus stated: The contract was in writing, signed by the parties, and was in the following terms:

“HASTINGS, MINN., June 1, 1883.

“I have this day sold to R. C. Libby, of Hastings, Minnesota, all my logs marked ‘H. C. A.,’ cut in the winter of 1882 and 1883, for ten dollars a thousand feet, boom scale, at Minneapolis, Minnesota. Payments cash, as fast as scale bills are produced.”

At the time of making the contract the logs were, as the appellant claims, and as we will treat his answer as showing, so situated, far up the Mississippi river, that they could not be examined by the defendant, and he did not see them until they were afterwards delivered. The plaintiff was to transport the logs to Minneapolis, where they were to be scaled and delivered. This was done, and the defendant received the logs, and appropriated them to his own use, although in the course of the delivery the defendant complained of their defective quality. The plaintiff is further alleged to have known that the defendant intended to use the logs for the manufacture of lumber. It is also alleged that they were unsound, decayed, and unmerchantable.

We will assume that, it being impossible for the defendant to examine the property at the time of making this contract, an implication attends the contract that the property is of a merchantable quality. But the contract was, upon its face, executory, and not an executed sale. The appellant concedes this, and such is its proper construction. Martin v. Hurlbut, 9 Minn. 142, (Gil. 132;)Sherwin v. Mudge, 127 Mass. 547;Lingham v. Eggleston, 27 Mich. 324;Kein v. Tupper, 52 N. Y. 550;Devine v. Edwards, 101 Ill. 138;Olson v. Mayer, 56 Wis. 551;S. C. 14 N. W. Rep. 640; Nicholson v. Taylor, 31 Pa. St. 128.

The contract being executory, the assumed implication that the property was of a merchantable quality is to be treated as a condition rather than a warranty. As to defects which were obvious upon inspection, and which were, or might have been, discovered when the contract was performed by the delivery of the logs; and the receiving and retaining of the logs under the contract, with knowledge of such defects, had the effect of an acceptance of the property delivered, as a performance of the executory contract, and a waiver of the implied condition. Haase v. Nonnemacher, 21 Minn. 486, and cases cited; Maxwell v. Lee, 27 N. W. Rep. 196;Gaylord Manuf'g Co. v. Allen, 53 N. Y. 515;Locke v. Williamson, 40 Wis. 377;Olson v. Mayer, 56 Wis. 551;S. C. 14 N. W. Rep. 640. Pollock, Princip. Cont. 464.

The fact alleged, that the defendant “complained” and “objected” that the logs were...