Williams v. Beneke
| Decision Date | 25 May 1915 |
| Citation | 153 N.W. 411,30 N.D. 538 |
| Court | North Dakota Supreme Court |
From a judgment of the District Court of Dunn County, Crawford, J defendant appeals.
Affirmed.
T. F Murtha, for appellant.
A general denial in any answer puts in issue all material facts, and plaintiff is required to make a prima facie case before anything is required of defendant. Plaintiff cannot take advantage of an admission in an answer, in form a general denial, without stating to the court his desire to do so. Myrick v. Bill, 3 Dakota 284, 17 N.W. 268; Dole v. Burleigh, 1 Dakota 227, 46 N.W. 692; Humpfner v. D. M. Osborn & Co., 2 S.D. 310, 50 N.W 88; Kirby v. Scanlan, 8 S.D. 623, 67 N.W. 828; Peterson v. Roberts County, 31 S.D. 439, 141 N.W. 368.
The true aim in construing every agreement, including that of warranty, is to reach the real intention of the parties. This is accomplished by taking, not what they afterward say was their intention, but what the words and language of the contract clearly imply. 35 Cyc. 376, and note 63, 388; Shaw v. Water Supply & Storage Co., 23 Colo.App 110, 128 P. 480; Turlock Fruit-Juice Co. v. Pacific & Puget Sound Bottling Co., 71 Wash. 128, 127 P. 842; Swift & Co. v. Redhead, 147 Iowa 94, 122 N.W. 140.
Warranties will be given a reasonable construction according to the obvious and usual import of the language used. 35 Cyc. 389, 412, 419, and note, 54, 421, 462; Curtis v. Northwestern Bedding Co., 121 Minn. 288, 141 N.W. 161; Minnesota Thresher Mfg. Co. v. Hanson, 3 N.D. 81, 54 N.W. 311; Paulson v. D. M. Osborne & Co., 35 Minn. 90, 27 N.W. 203; Kramer v. Messner, 101 Iowa 88, 69 N.W. 1142; Dempster Mill Mfg. Co. v. Fitzwater, 6 Kan.App. 24, 49 P. 624.
Casey & Burgeson, for respondent.
A party who formally and explicitly admits by his pleading that which establishes plaintiff's right will not be suffered to deny its existence or to prove any set of facts inconsistent with that admission. 31 Cyc. 211; Gale v. Shillock, 4 Dakota 182, 29 N.W. 661; Ostland v. Porter, 4 Dakota 98, 25 N.W. 731; Myrick v. Bill, 3 Dakota 284, 17 N.W. 268; Paige v. Willet, 38 N.Y. 28; Lamberton v. Shannon, 13 Wash. 404, 43 P. 336.
Defects or omissions in evidence introduced by one party may be cured or supplied by evidence subsequently introduced by his adversary. 38 Cyc. 1432; Gale v. Shillock, 4 Dakota 182, 29 N.W. 661.
The holder of a negotiable instrument may sue thereon in his own name, and payment to him in due course discharges the instrument. American Soda Fountain Co. v. Hogue, 17 N.D. 375, 17 L.R.A. (N.S.) 1113, 116 N.W. 339.
This appeal is from a recovery on a note given for the purchase price of three disc drills. The defense was a general denial, coupled with a counterclaim for damages, based upon breach of warranty. If the instructions are erroneous, reversal must follow, hence errors predicated on instructions will be first considered.
Appellant contends that the instructions are narrower than the breach of warranty pleaded. The warranty set forth is "that at the time of said sale the said sellers warranted to this defendant that said disc drills were suitable and adapted for and would do the work, to wit, the seeding of small grains upon all kinds of land; and that by and through said warranties the defendant was induced to purchase and give his note for said machines; that he purchased said machines for the purpose of seeding land in Dunn county, and this the sellers well knew, and warranted that said drills would perform the services for which defendant purchased them." The breach of warranty alleged is "that defendant immediately tried out said drills in the seeding of small grains, but that said drills did not work; that defendant immediately and in good faith gave said drills a thorough trial for the purpose for which they were purchased and in and about the service that they were warranted to perform, to wit, the seeding of small grain; but that said drills did not do such work; that is, they did not seed small grain; that this defendant immediately notified the sellers, and that they have failed to remedy the defects in said machines or make them work." The warranty, the breach thereof as pleaded, and the proof of both warranty and its breach, must be considered with the instructions, as the trial court could not instruct beyond the scope of the proof, even though within the pleadings; nor, on the contrary, could the proof of warranty or its breach supplement or extend the particular warranty and the breach thereof as pleaded.
Defendant's agent who purchased the drills for him testifies: "He (seller) stated that he would warrant the drills to seed wheat or any kind of grain," other than flax. And again, "He agreed they would seed as good as any horse drill made." Defendant then offered proof that they were not as good for his purposes as horse drills; were less flexible; much heavier; would clog; and that after using them in seeding some 40 acres he discarded them. It appears, however, that the machines were purchased for use only with an engine, and that defendant knew they were too heavy to be used in any other way. The testimony is in conflict as to any notification of breach of warranty, although defendant claims such a notice was given. Concededly no rescission was attempted, or any redelivery of the drills made or offered. The note matured. Again the testimony is in conflict as to whether defendant waived any breach of warranty by his offers of settlement, by his obtaining extensions of time for payment. But as defendant was entitled to have the jury consider his defense from its widest possible standpoint as pleaded, everything will be disregarded except the scope of warranty alleged and proven, and instructions thereon. The written instructions read:
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