Tunell v. D. M. Osborne & Co.

• Decision Date: 29 December 1883
• Citation: 17 N.W. 944,31 Minn. 343
• Parties: Frederick Tunell v. D. M. Osborne & Co
• Court: Minnesota Supreme Court

17 N.W. 944

31 Minn. 343

Frederick Tunell v. D. M. Osborne & Co

Supreme Court of Minnesota

December 29, 1883

Appeal by defendant (a corporation) from an order of the district court for Freeborn county, Farmer, J., presiding, refusing a new trial. The action was brought, in October, 1882, for breach of warranty on the sale of a self-binding harvester in July, 1878. The warranty is set forth in the opinion. In his complaint the plaintiff alleges that the machine was worthless for the purpose for which it was sold to him whereby he was damaged in the sum of $ 300, for which he asks judgment. The defendant, in its answer, denies any breach of warranty, alleges that the plaintiff never returned or offered to return the machine, but has kept and used it ever since the purchase, and has paid the notes given for the price, ("except an amount due on the settlement hereinafter pleaded,") after full opportunity had for ascertaining the character of the machine, and without making any objections to the machine or claiming any defects in it. The defendant further alleges an accounting and settlement between the parties, on September 1, 1879, of all matters arising out of the sale, and an agreement by plaintiff to pay the defendant $ 105, the amount found due on the accounting no part of which has been paid. And as a counterclaim the defendant alleges a note for $ 105, with 7 per cent interest, made by plaintiff to defendant (for the unpaid balance of the purchase-money) on September 1, 1879, which is past due and is unpaid. The jury found for plaintiff for $ 25 damages, over and above the amount of defendant's counterclaim.

Order affirmed.

Gordon E. Cole, for appellant.

By his neglect to return the machine the first year, the plaintiff forfeited all right to recover; and, in any event, under the contract, he must show an offer to return. Without that he cannot recover. If that is shown, he may either (1) keep the machine and recover the difference between its actual value and its value as warranted, or (2) return it and recover the price paid for it. Osborne v. Flood, 11 Bradwell 408; Myers v. Hay, 3 Mo. 98; Lucas v. Heaton, 1 Ind. 264; Lisk v. Sherman, 25 Barb. 433; Sedgwick on Damages, (7th Ed.) 437.

Lovely & Morgan, for respondent, cited Knoblauch v. Kronschnabel, 18 Minn. 272, (300;) Minn. Harvester Works v. Bonnallie, 29 Minn. 373; Mandel v. Buttles, 21 Minn. 391; Douglas Axe M'f'g. Co. v. Gardner, 10 Cush. 88; Day v. Pool, 52 N.Y. 416.

OPINION

Dickinson, J.

Prior to the harvest of 1878, the plaintiff purchased of the defendant a self-binding harvesting machine, known as the "Osborne Self-binder," for the agreed price of $ 310, $ 100 of which was paid at the time of the sale. As a part of the transaction the following warranty and agreement was executed by the defendant and delivered to the plaintiff:

"All our machines are warranted to be well built, of good material, and capable of cutting, if properly managed, from ten to fifteen acres per day. If, on starting a machine, it should in any way prove defective, and not work well, the purchaser shall give prompt notice to the agent of whom he purchased it, and allow time for a person to be sent to put it in order. If it cannot then be made to do good work, the defective part will be replaced or the machine taken back, and the payment of money or notes returned. Keeping the machine during harvest, whether kept in use or not, without giving notice as above, shall be deemed conclusive evidence that the machine fills the warranty.

D. M. Osborne & Co."

This action is for the recovery of damages for breach of the warranty. The defects relied upon were confined to the binding machinery, no other fault having been found in the machine. Upon the issues submitted to the jury, their verdict in favor of the plaintiff must be regarded as having established the fact that the binder was defective and incapable, although properly managed, of performing as required by the conditions of the warranty, if those conditions are to be construed as applying to the binding attachment. The verdict also determines that the plaintiff gave notice of the defects, as required by the terms of the agreement, and allowed opportunity to remedy them. He kept the machine and used it through several successive harvests although he repeatedly complained of the defects to defendants' agents. He does not appear to have ever distinctly offered to return the machine, nor...