W. J. Dyer & Bro. v. Bauer

Robinson, J. In November, 1918, the plaintiffs, dealers in musical instruments in St. Raul, sold defendant a secondhand fotoplayer, to be used as an orchestra in his moving picture theatre at Bismarck. For the player defendant gave a note for $3,000. To secure the note he gave a chattel [397] mortgage on the player. The purpose of this action is to recover the balance due on the note and to foreclose the mortgage. The defense is a breach of warranty. The jury found in favor of defendant and against the plaintiffs and assessed defendant’s damages at $1.00. The evidence was conflicting. The jury heard it all and found, in effect, that defendant had paid for the old player all it was worth, and more too. The payments and freight amounted to about two-thirds of the purchase price. The answer avers that at the time of contracting to purchase the player defendant was the proprietor and manager of a picture theatre at Bismarck, as the plaintiffs well knew; that to induce defendant to purchase the instrument plaintiffs represented and warranted that it would play several musical instruments and furnish good orchestral music for the theatre; that it was in all respects suitable for use in the theatre and that its use would make the theatre a success. The defendant knew nothing of such instruments and he bought the same relying on the representations and warranty; that the player was hot suitable for theatrical purposes; it easily got out of order, did not give satisfaction and was not worth over $500. Now it appears that defendant had never seen a fotoplayer and knew nothing of such an instrument and that he relied on the warranty of quality and fitness, express and implied. He bought the player for a particular purpose, known to the plaintiffs, and he bought it relying on their representations and judgment. The deal is covered by the Sales Act (Laws 1917, c. 202, § 15): “* * * Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies upon the seller’s skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for that purpose.” The testimony showing the defects and the failure of the player is oral, and is quite extensive. The player represents a variety of musical instruments. It is a complicated machine. The testimony is that after it was installed by the expert it ran well enough for a while, and in about two or three weeks it started to get out of order. The expert from St. Paul was called. He overhauled it and for a time it ran along, and then got out of order, so the expert had to be called again and again to overhaul the player, and it kept going from bad to worse. The result was a continual discord. “It was awful,” says Mr. Bauer. “We could not use the instrument, and we played the piano by hand without the at [398] tachments.” The machine was installed in January, 1919, and in about a year and a half defendant ceased attempting to use it. Mr. Bauer testifies that during the first year it was used about four or five months, and the rest of the time was out of order. He says the machine is of no value only the piano part, which is worth about $500. The testimony of Mr. Bauer is well corroborated by his wife and by Mr. Hoffman, a piano tuner who worked on the player trying to put it in order. .... Mr. Roth, the expert who installed the player, and who oyerhauled it four times, testifies that on each occasion he left it in good working order and mechanically perfect. He attributes the failure of the player to defects in its operation, and doubtless there were defects in the operation as well as in the complicated machine. Defendant and his help were fairly able to operate the machine till it got badly out of order, and then he had to send for the expert to overhaul it. So it is with a farmer of ordinary skill; when he buys a new machine it commonly runs well and he finds it easy to operate, but as it commences to get badly out of repair the operation becomes more and more difficult. The machine in question was second-hand. It is probable that because of some failure in operation the plaintiffs had taken it back from the first purchaser. But, to indu the defendant to buy it, they assured him that they were going to build in their own shops important missing parts of the player, and promised him the same guaranty as with an entirely new instrument. The player was sold with both an express and an implied warranty of fitness fo" use in a theatre. Here is a copy of two letters written to induce the defendant to purchase the player: St. Paul, Nov. 6, 1918. Mr. A. J. Bauer, care Orpbeum Theatre, Bismarck, No. Dak. — Dear Sir: We are very much surprised to learn through our Mr. Hough that you have entirely given up the idea of purchasing a fotoplayer because of your desire to dispose of your theatre. We honestly believe, Mr. Bauer, if you were to install one of the genuine fotoplayers in the Orpheum Theatre, it would prove a sensation that would <be the talk of the country for miles around and would, undoubtedly, result in increasing your business and your profits. We trust that you will reconsider this matter and let us get together on a proposition. We have known of cases where business was so poor that the owner of [399] the theatre could not meet his current bills. After the installation of a fotoplayer business improved to such an extent that the increased patronage took care of the payments on the fotoplayer and left a nice profit besides. We are sure that if you put the thing over right, you will have the same results. Cannot we get together at this time ? We are inclosing a stamped and addressed envelope, and awaiting your favor, we are Yours very truly, ALB*HR W. J. Dyer & Bro. St. Paul, Dec. 17, 1918. Mr. A. J. Bauer, care Orpheum Theatre, Bismarck, N. D. — Dear Sir: We are sorry to report to you that we are still unable to make shipment of your fotoplayer. Upon receipt of the new parts froln the factory, we discovered that one of the most important parts was missing, and as it would take at least two weeks to get this by express from the factory, we concluded to go ahead and build it in our own shops. This .has delayed matters longer than we had anticipated, but we have promised you the same guaranty with this instrument as we would with an entirely new one, and for this reason, the writer has insisted that the foreman of our repair department should have this instrument in just as good condition mechanically as a new one before it is boxed for shipment. Of course, this means that the instrument will not be set up until after Christmas and while it may be a disappointment to you not to have the instrument sooner, you really are way ahead of the game, for it means a saving of several hundred dollars to you on the instrument. Regretting exceedingly that we have not been able to make shipment up to this writing, and with compliments of the season, we are Yours truly, . ALB :AS . W. J. Dyer & Bro. P. S.- — Inclosed please find copy of your order which has been accepted by us. 1 :INC. On the whole it appears that the plaintiffs have had a fair trial. They have received good value for their player. The verdict does them no injustice. It is well sustained by the weight of the testimony. Judgment affirmed. Birdzell, J., concurs. [400] Grace, J., concurs in the result.