Thoreson v. Minneapolis Harvester Works

• Decision Date: 03 August 1882
• Citation: 13 N.W. 156,29 Minn. 341
• Parties: Thomas Thoreson and another v. Minneapolis Harvester Works
• Court: Minnesota Supreme Court

13 N.W. 156

29 Minn. 341

Thomas Thoreson and another v. Minneapolis Harvester Works

Supreme Court of Minnesota

August 3, 1882

This action was brought in the district court for Freeborn county.The complaint, after setting out the incorporation of defendant, alleges, that on July 30, 1878, defendant, for the consideration stated, "agreed to and with these plaintiffs to sell them a reaping machine;""that said defendant then and there, by its agent, duly authorized thereto, represented and warranted to these plaintiffs that said * * * reaper was a good and perfect machine for the uses and purposes for which it was intended, * * * and that said machine was reasonably worth and of the actual value of $ 155;" and "that said plaintiffs relied on said representations and warranty * * * and believed them to be true, and in consideration thereof, and not otherwise purchased said machine, and then and there executed and delivered to said defendant, as and for the purchase price ot said machine, their promissory notes in writing to the amount and of the value of $ 155, with interest thereon at the rate of 10 per cent. per annum from the date thereof until paid."The complaint further alleges that said machine "was absolutely worthless and of no value whatever for the purpose for which it was sold to these plaintiffs," and "that these plaintiffs used all due care and skill in the management and operation of said machine, but solely on account of the worthless materials and defective workmanship used and employed by said defendant in the construction of said machine, they were wholly unable to operate or use the same for any purpose."That immediately upon learning the worthless character thereof and in August, 1878, the plaintiffs tendered back the machine to defendant, and demanded delivery and possession of the notes given for the purchase price, but that defendant refused and still refuses to deliver said notes or either of them to the plaintiffs.The complaint also contains an allegation that plaintiffs are solvent, and concludes with a demand for "judgment against defendant for the sum of $ 155, with interest thereon at 10 per cent. per annum from July 30, 1878, and for costs and disbursements."

The answer admits the sale of the reaper to plaintiffs, and the making and delivery of the promissory notes for the purchase price, denies all the other allegations of the complaint sets up a written warranty as the only one made, and which has not been broken, and also sets up, as a bar to this action, a judgment of the municipal court of St. Paul entered by default against the plaintiffs on the first two of the promissory notes given for the reaper.

On the trial before Farmer, J., and a jury, plaintiffs were allowed to amend the complaint so as to make the sum of the promissory notes $ 165 instead of $ 155, in accordance with the facts.The jury brought in a verdict, May 24, 1881, for $ 211 for plaintiffs.Defendant appeals from an order refusing a new trial.

Shaw, Levi & Cray and J. Whytock, for appellant.

The judgment of the municipal court of St. Paul is a bar to this action, and should have been admitted in evidence.Doyle v. Hallam,21 Minn. 515;Adams v. Adams, 25 Minn. 72, 76.

Lovely & Morgan, for respondents.

The damages are not excessive.The reaper being worthless, the plaintiffs are entitled to the value of the notes given in exchange for it.This would be the face of the notes with the interest, which is ten per cent., added.Field on Damages, §§ 273, 274, 281, 293;Fish v. Tank,12 Wis. 276;Roberts v. Fleming,31 Ala. 683;Wintz v. Morrison,17 Tex. 372;Ferris v. Comstock,33 Conn. 513;Prentice v. Dike, 6 Duer, 220;Laubach v. Laubach,73 Pa. St. 387;Cowley v. Davidson,13 Minn. 92;Burke v. Beveridge, 15 Minn. 205.

OPINION

Dickinson, J.

The action is founded upon a sale of a reaping machine by the defendant to the plaintiffs.The complaint seems to have been framed with a view to a recovery of damages for breach of a warranty made upon the sale of the property, and also with reference to a recovery of the purchase price, upon the ground that the contract of sale had been rescinded.These two grounds of action are inconsistent.The one rests upon the existing obligation of the contract; the other upon its dissolution and non-existence.The defendant, however, did not seek to confine the issues to one of these positions, nor, upon the trial, to have plaintiffs elect between the two.

1.The defendant now assumes, as a ground for reversal, that the contract of sale was rescinded, and that plaintiffs, having never paid the purchase-money, have not suffered damage.But the pleadings do not admit the rescission of the contract, nor does the evidence prove it.A rescission by mutual consent is not claimed.The complaint does not allege, nor does the evidence show, facts giving a right on the part of plaintiffs to rescind, for that right does not arise upon mere breach of a warranty in the sale of chattels without fraud, and without reservation by contract of a right to rescind.Knoblauch v. Kronschnabel, 18 Minn. 300, 303.The answer assumes to put in issue the fact of rescission.Clearly, then, it cannot now be assumed, for the purpose of defeating the recovery, that the contract was rescinded.

2.The right of recovery must rest upon the ground of breach of contract of warranty.It is claimed that plaintiffs were not entitled to recover, because they had not paid the purchase price, but had given their promissory notes therefor, which are still unpaid.This question was decided by this court in Frohreich v. Gammon, 28 Minn. 476, 11 N.W 88, adversely to this...