Melby v. D. M. Osborne & Co.

Vandebbuegh, J. This action is for damages for breach of warranty of a harvesting machine, which was delivered to the plaintiff by defendants upon the following order made by plaintiff: “Earl é Hanson, Fergus, Minn. — Sirs : You are hereby authorized to ship me at Ashby, on or before the 15th day of July, 1881, the following implement, viz., 1 Osborne H. & Binder, which I hereby agree to promptly receive under the following warranty, viz., that the said machine is of good material, properly constructed, and will do good work at all operations for which it is intended, with proper management. I will make payment for same as follows: * * '* $300, total. I also agree to pay the freight on same from factory where made. K. N. Melby.” [494] It appears that Earl & Hanson were the agents of the defendants in the sale of their harvesters and binders; that the latter acted upon the order, supplied the machine, and subsequently attempted to repair it, and also accepted and collected the note given therefor. The order itself constituted no contract. Warner v. Fischbach, 29 Minn. 262. But the contract was completed and became mutually binding upon plaintiff and defendants upon the delivery of the machine in pursuance of the order and the acceptance of the plaintiff’s note, which ran to them. It was entirely competent to show the agency of Earl & Hanson, and the subsequent acts and dealings of the parties in pursuance of the order. The presumption is that defendants understood the nature of the transaction and made it their own. They have accepted the benefits of the contract, and are bound by its conditions. 2. The plaintiff was entitled, therefore, to recover of defendants any damages shown to have resulted from the breach of warranty. His evidence in the case tended to show that, as a binder and harvester combined, the machine did not work well, because the binder was defective, and the plaintiff and his witnesses testified that the machine was substantially worthless. In the course of his examination one of the witnesses, having stated that the machine was worth nothing as a twine binder, on his cross-examination testified that the binder could be taken off; that the harvester part worked well, and was not defective; and that the price of the harvester was $175. The defendants thereupon sought to prove by him how much it would cost to make it a good hand-binding harvester, which evidence was ruled out as incompetent and immaterial; and the witness having further stated that it was practicable so to change it by adding tables and platforms, defendants’ counsel thereupon also sought to show by him what would be the cost of adding the same so as to make a complete hand-binding harvester out of it, and also what was the value ■of the machine for such purpose, which was also rejected by the court. The exceptions to these rulings we think should be sustained. The objection went to the testimony, not to the qualification of the witness to speak on the subject. The error was not cured by other evi [495] dence in the ease, and it may be presumed that the defendants were prejudiced. The jury were in danger of being misled upon the question of damages by the evidence in chief of this witness that the machine was worthless as a hinder. Osborne v. Marks, ante, 56. Proper latitude should therefore have been given on the cross-examination to prove the condition and value of the harvester by itself, and also the ■cost of repairs or changes reasonably practicable so* as to make the machine work with another binder, in order that its actual value might be better understood .and estimated by the jury. The letters received by plaintiff in due course of mail, and purporting to come from the defendants in answer to letters written by him, were presumptively genuine, and were properly received in evidence. His letters, duly mailed to them, are presumed to have reached their destination in due course, and those received by him purported to be written by or for them in response thereto. 2 Whart. Ev. § 1328; 1 Greenl. Ev. §§ 40, 573a. Order reversed.