Wood v. Advance Rumely Thresher Co.

• Citation: 234 N.W. 517,60 N.D. 384
• Decision Date: 03 February 1931
• Docket Number: No. 5820.,5820.
• Parties: WOOD et al. v. ADVANCE RUMELY THRESHER CO.
• Court: United States State Supreme Court of North Dakota

60 N.D. 384

234 N.W. 517

WOOD et al.

v.ADVANCE RUMELY THRESHER CO.

No. 5820.

Supreme Court of North Dakota.

Jan. 2, 1931.

Rehearing Denied Feb. 3, 1931.

Syllabus by the Court.

Where an order for machinery was signed by a buyer which contained provisions making it subject to the approval of seller at its head office, the buyer is bound to know when signing the order that it was not binding on the seller until approved by it.

Syllabus by the Court.

An agent whose authority is limited in writing to the soliciting of orders for the sale of machinery, the forwarding of such orders to the branch office, to be forwarded by such branch office to the head office in another state for approval and to the delivery of the machine to the purchaser which is shipped to fill such orders, after its approval at the head office, has no authority to bind the principal by the sale and delivery of a machine for which no order signed by the purchaser has ever been delivered to or approved by the principal.

Syllabus by the Court.

A purchaser who signs an order with full knowledge of the authority of the agent who procured the order has no right of action against the principal for an act of the agent outside the course of his employment.

Syllabus by the Court.

A warranty of personal property is personal to the purchaser of the property to whom the warranty is made, and a subsequent sale of the property by the purchaser does not operate to vest in the subsequent purchaser any right of action which the former might have had against the original seller for a breach of warranty, for such warranty does not pass with the property, and to maintain an action for a breach thereof there must be privity of contract between the parties.

Appeal from District Court, Ward County; Geo. H. Moellring, Judge.

Action by L. E. Wood and C. E. Wood, copartners as Wood Bros., against the Advance Rumely Thresher Company. Judgment for plaintiffs, and defendant appeals.

Reversed, and action dismissed.Lawrence, Murphy, Fuller & Powers, of Fargo, for appellant.

McGee & Goss and I. H. Breaw, all of Minot, for respondents.

BURKE, C. J.

This is an action upon an alleged breach of warranty in an order for machinery.

The trial judge made findings of fact and conclusions of law favorable to the plaintiff, and, from a judgment entered thereon, the defendant appeals.

In January, 1925, George Ranum an agent to solicit orders for the defendant company, procured from the plaintiff an order for a 20-35 tractor to be paid for in cash. The order provides: “This contract shall not be obligatory upon vendor until accepted by it at its head office, and no agreement collateral hereto shall be binding upon either party unless in writing hereupon or attached hereto, signed by the purchaser and accepted by the vendor at its head office.”

On the 9th of February, Ranum's contract of agency was canceled while he still had the order signed by plaintiff in his possession. Plaintiff proved at the trial that it was familiar with the terms of Ranum's contract of agency; that Mr. A. L. E. Wood looked it over and read it before giving the order. The contract of agency states specifically that “the Company authorizes the second party to solicit and take orders on commission until October 1, 1925, unless this contract is sooner terminated, for such machinery, repairs and extras as it deals in. * * * He shall take all orders on the Company's printed 1925 order form in duplicate without alteration, at the Company's list prices on date of order containing all agreements and understandings with the purchaser, deliver one duplicate copy to him which second party shall read to and cause purchaser to understand at the time of execution, and promptly forward the other duplicate with his signed recommendation thereon to the branch house having jurisdiction, for transmittal to the company's head office for acceptance or rejection, of which the Company shall be the sole judge; and the Company reserves the right to cancel, or refuse to fill any order it may have accepted, and shall not be liable for any commission or for damage on orders it cancels or refuses to fill. * * * This printed form which, without interlineation or change, embodies the entire contract between the parties, cannot be altered in any manner, except by instrument in writing, signed by the proper authority at the head office of the Company, and shall not be binding on the Company until accepted in writing by the Company at its head office.”

After the cancellation of his contract of agency, Ranum, who still had the order signed by the plaintiff in his possession and wanting to get the commission on the sale, testified that he went to Fargo and had a conversation with A. G. Malmo, branch manager of the defendant company at that place. He said: “Mr. Malmo asked me if I didn't know some other dealer for the Rumely Company that I could send these orders in through, that they had given my territory to the dealer at Parshall, Doten and Thompson. I said, I could possibly send the order in through Mr. Ulrick at Van Hook. Mr. Malmo said that would be all right. When I got back home I took the Woods' order to Ulrick at Van Hook, and delivered it to him. He agreed to send an order in for the tractor to supply the Wood Brothers' order.” Ranum gave the order signed by the plaintiff to Ulrick, but Ulrick did not send it to the branch office for forwarding to the home office for acceptance, but did make out and sign an entirely different order. The order signed by the plaintiff was an order for machinery, the order signed by Ulrick was a dealer's contract and order, and it was this order which was accepted and filled by the shipment of the tractor. When the tractor arrived at Parshall, Ranum took up the bill of lading through the First National Bank at Van Hook. The sight draft was for $1,553.83, the...