Westby v. J. I. Case Threshing Mach. Co.

• Decision Date: 27 May 1911
• Citation: 132 N.W. 137,21 N.D. 575
• Parties: WESTBY v. J. I. CASE THRESHING MACH. CO.
• Court: North Dakota Supreme Court

21 N.D. 575

132 N.W. 137

WESTBY

v.J. I. CASE THRESHING MACH. CO.

Supreme Court of North Dakota.

May 27, 1911.

Syllabus by the Court.

Plaintiff signed a written order for the purchase of a threshing machine of defendant. On its arrival plaintiff could not give security for its purchase price in compliance with the order, and delivery was not made. Defendant's agent for purposes of delivery and collection then sold plaintiff the machine under an oral contract at a reduction for cash, the machine to be tried, and if not satisfactory returned, and, pending trial, the cash price was deposited with such agent. The machinery proved worthless. The agent transmitted the money to the defendant, who retains it. Plaintiff rescinded the oral contract of sale and recovered judgment for the amount paid, including freight.

Held: The delivery under the oral contract was not a delivery of the machine under the written order, notwithstanding that such order by its terms forbade the agent substituting a new contract of sale therefor, and that the machine was delivered under a new and independent oral contract of sale.

That under the oral contract plaintiff had the right to test such machinery by trial and its acceptance for such purposes was not an acceptance under the written order, even though the company's agent had no authority to make an oral contract of sale or permit such trial before acceptance of the machinery.

Where the machinery is delivered under a new and independent oral contract of sale under which the company receives a purchase price on such a sale made by an agent in excess of the agent's authority, the company, as principal, must disaffirm the unauthorized sale, or they will be held to ratify the agent's acts and such sale under the oral contract.

Where, after rescission of such an oral contract action is brought by the purchaser to recover the purchase price, a written executory contract between the parties made prior to the executed oral contract, but under which written contract no delivery was ever had, the written warranties and conditions as such are not parts of the oral contract unless made so by the terms of such oral contract itself; the executed oral contract entirely superseding in such particulars as well as all others the prior written executory contract. Therefore, the written contract and the warranties therein contained and the conditions provided under which it might be rescinded, including manner of rescission, are not parts of the oral contract and can constitute no defense to an action for the purchase price based on rescission of the oral contract of sale when delivery was had under such oral contract.

Plaintiff's complaint was prepared to permit proof of either a written contract of sale with rescission as provided for in such written contract, or to permit proof of an oral contract of sale and rescission thereof. Where no motion is made in advance of or on trial to compel plaintiff to elect under which contract of sale he will submit proof, plaintiff has the right of choice and may as in this case rely upon and prove such oral contract. The fact that plaintiff gave notice of rescission in the same manner provided in the written contract, and plead such rescission, does not of itself estop plaintiff from relying on the oral contract where such notice is not inconsistent with a rescission of such oral contract.

Appeal from District Court, Benson County; Cowan, Judge.

Action by Edward Westby against the J. I. Case Threshing Machine Company. Judgment for plaintiff, and defendant appeals. Affirmed.H. R. Turner, for appellant. I. C. Davies and Buttz & Sinness, for respondent.

GOSS, J.

This action was brought to recover the purchase price paid defendant for a Case threshing machine separator with attachments of wind stacker, feeder, band cutter and weigher, for all of which plaintiff paid defendant on receipt of said machinery, on October 2, 1905, including freight, the sum of $1,064.75.

Plaintiff's complaint alleges the sale to him by the defendant of the foregoing articles of machinery, forming a complete threshing machine; that they were of the make and manufacture of the defendant company and by them made and manufactured for sale, and sold to plaintiff to be used for the purpose of threshing and separating grain, and were for that purpose purchased; that said machine was warranted as an inducement to the purchase thereof and as a part of the consideration therefor; “that the said threshing machine was properly constructed of good material, and was fit for the purpose for which it was made and manufactured and offered for sale, and for the purpose for which it was sold to the plaintiff-that is, to use for the threshing and separating of grain; and that the said threshing machine would do good work when used for that purpose;” that said machine would thresh and separate grain to the satisfaction of the plaintiff; and that should such machine fail to thresh and separate grain to the satisfaction of the plaintiff that it could be returned to the defendant and the purchase price would be refunded plaintiff; that such agreement was inducement to plaintiff to enter into such contract of sale, and was a part of the consideration therefor. That relying upon these representations and warranties the plaintiff bought the threshing machine and paid defendant as the purchase price the sum aforesaid, and the threshing machine was delivered him. That the threshing machine was poorly constructed of defective material and not fit for threshing and separating grain; that it was of faulty construction; that defective material was used in its construction; that it continually broke down in its various parts and clogged up, and wholly failed to do good work as a threshing machine in the threshing and separating of grain, and wholly failed to comply with said warranties under which it was sold. As soon as plaintiff discovered the defects so ascertained by tests of the machinery he notified the defendant company, by registered letter addressed to it at Racine, Wis., of the failure of the machine to conform to the warranties under which it was sold and of his rescission of the contract of sale, and immediately thereafter redelivered the threshing machine to defendant's agent upon the right of way at Maddock, where such machine had been purchased and received by this plaintiff from the defendant. That such return was made on or about October 17, 1905, and on said date defendant was notified thereof by registered letter addressed to it at Racine, Wis.; that ever since said machine has been in the possession of the defendant; that upon the return of the rig the plaintiff demanded the payment to him by the defendant company of the amount sued for, the purchase price and freight aforesaid, with which demand defendant has refused to comply.

Defendant in answer to plaintiff's complaint admits the sale and receipt of the money and delivery of the machinery, but alleges the sale thereof was under a written contract consisting of a written and printed order signed by plaintiff and accepted by defendant, and pursuant to which the machinery was delivered. That under said written contract defendant warranted said machinery to be of good quality and workmanship, durable under good care and able to do good work under ordinary conditions; and recites at length the order and warranty under which the defendant company alleges the machinery was sold to plaintiff. The trial was had to a jury, plaintiff recovering judgment for the full amount sued for.

Defendant claims that plaintiff by his pleadings has relied upon the written contract and performance thereunder, and that proof of an oral contract is without the pleadings and beyond the issues joined under them. In this conclusion we cannot agree with appellant. Contrary to his contention the complaint alleges the sale to have been made at Maddock, N. D., on October 3, 1905, of a complete threshing rig and sold under an express warranty with subsequent breach thereof, all set forth in detail. It is true that defendant as to the oral contract pleads a rescission with notice thereof by registered letter to the company's office at Racine, Wis., but in the same connection he pleads that the machine was purchased at Maddock, N. D., and for the sum actually paid by the deposit and freight. It is not until we inspect the answer that any written contract or terms thereof is found in the pleadings in the case; and it is only from the proof that we discover that the written contract was executed at Fargo, N. D., in September, while the oral contract, upon which it is plain the suit is brought, establishes a transaction on October 2d at Maddock, with the machinery at such place. It is noticeable that the complaint does not mention a written contract. Plaintiff by his pleadings avoided limiting his proof. Appellant's contention that plaintiff has sued on the written contract is incorrect.

Upon the trial the facts stand undisputed; briefly recited they are set forth in the following statement: On September 28, 1905, plaintiff, after having been solicited by one Cooper, acting as sales agent for defendant company, to purchase this machinery, signed the usual threshing machine order or contract of purchase of the same in the defendant company's office at Fargo, N. D. The order provided that the plaintiff as purchaser would receive at Maddock, N. D., such machinery on its arrival, and pay therefor the freight to said point and the further sum of $1,070 by executing three notes, due October 1, 1906, 1907, and 1908, respectively, aggregating said amount, and secure the notes by a first mortgage on the machinery sold, and also a first mortgage on a Reeves engine and tank owned by plaintiff, “and failing to pay said money or execute and deliver said notes and mortgage this order shall at the company's option stand as purchaser's written obligation and have the same force and...