Birdsall Co. v. Palmer

Briscoe, J., delivered the opinion of the Court. The Birdsall Company, a corporation duly incorporated under the laws of the State of New York, but doing business in this State, brought suit on the 29th of October, 1889, in the Circuit Court for Queen Anne’s County, against the appellees in indebitatus assumpsit on the common counts, for the contract price of a machine, known as the Vibrator Separator,, sold and delivered by the plaintiff to the defendants. The case was tried upon [209] the plea of never indebted as alleged. The contract under which the alleged sale was made was in writing, and under seal. ' It is very obscure and confused in its meaning, and contains the following warranty: “ These machines are hereby ordered, purchased and sold subject to the following warranty: That the machines are well built of good materials, and, with proper management, are capable of doing as much and as well as other machines of like size and proportions. The purchasers agree to carefully follow any directions given them by the Birdsall Company in starting and operating the machinery, and after giving it a fair trial of one week, if it should not work well, to give written notice to the agent from whom it was received, stating wherein it fails, and also to the Birdsall Company, at Auburn, E. T. Reasonable time is to be allowed to get to it and remedy the defects, if any exist, the purchaser hereby agreeing to render necessary and friendly assistance. If it cannot be made to perform as guaranteed, it shall be returned to the place where received, and a new machine given in its place, or the notes and money refunded. But should such failure have been caused by improper management, or neglect of the purchasers to follow directions given them for starting the machine, then they to pay all necessary expenses that have been incurred. Continued possession of the machinery shall be evidence of satisfaction and acceptance. It is understood and agreed, that if the purchaser does not make full settlement with cash or approved notes for the machine upon its delivery to him, he thereby waives all claims under this warranty. (Eo agent has authority to change this warranty.) Should there be any failure on the part of the Birdsall Company to deliver the machinery at the time agreed upon, the acceptance of the same by the purchaser whenever deliv-' ered shall be. understood as a waiver of all claims for [210] damages by .reason of such delay. It is understood and agreed, that the title, ownership, or right of possession of the above described property does not pass from the Birdsall Oo. until settlement is made in full as above agreed." It will appear from the form of action adopted by the appellant that he sought to recover for the value of the machine, and not for damages on the special contract or for breach of contract. The evidence shows that the defendants, on the 30th day of April, 1889, ordered of the plaintiff the machine in controversy, for which they were to pay the sum of $350, in three interest-bearing notes, and also one second-hand Vibrator Separator. The notes were to be executed and delivered to the company at the time and place uf deliver}' of the machine, and were to be payable respectively on the first day of October, 1889, 1890 and 1891, for the sum of $116.66, and these were to be secured by a mortgage on the machine. The notes were never delivered, nor the mortgage ever executed, although the machine was shipped and was received by the defendants on or about the. 15th of June, 1889. There was no demand made for the notes until sometime in July, after the date when a notice had been given that the machine had been fairly tested, and did not come up to the warranty contained in the contract, and that the defendants intended to return it to the plaintiff. The defendants refusing to settle according to the terms of the alleged contract, the plaintiff brought this suit. At the trial the appellant reserved five exceptions, three to the admissibility of testimony, one to the rejection of the plaintiff’s prayers, and one to the granting of the defendants’ prayer. The first, second and third bills of exception relate to the admissibility in evidence of testimony tending to show that the machine did not come up to the contract, and Avas not worth the contract price, but was a defective machine; also} as to the admissibility [211] of certain letters written by the defendants to the plaintiff, showing an offer to surrender the machine prior to the demand for settlement. Tlie contract of sale had been read to the jury for the purpose of showing the contract price, and we think that this evidence was competent, and admissible for the purpose of establishing the fact, that the machine did not possess the qualities claimed for it. It was proof tending to show its actual value. The contract price could not be recovered unless the thresher possessed the merits claimed for it. The fourth bill of exception was as to the rejection of the plaintiff’s prayers, and to the instructions given by the Court in lieu thereof. The rejected prayers were manifestly erroneous, because they proceeded upon the theory that recovery could be had under the contract, and for the contract price, in the form of action of this case. The instruction by the Court and the defendants’ prayer correctly announced the law in all the points raised in the case. They said to the jury, that if the. thresher was as guaranteed, and as represented to be by the appellant, then it could recover the contract price as the value ■of the machine, with interest; but if it was not as represented, but less valuable, then the appellant could recover what the evidence showed the machine was fairly worth. This disposes of all the questions presented in the case. There was no error in the rulings of the Court, •and as the facts were fairly presented, and the case was properly tried, the judgment will be affirmed. (Decided 9th April, 1891.) Judgment affirmed.