C. Aultman & Co. v. Falkum

Yanderburoh, J. Upon the former appeal, 47 Minn. 415, (50 N. W. Rep. 471,) it was held that the court properly submitted to the jury the question whether the plaintiff’s signature to the order containing the written warranty set up in the reply, and relied on by the plaintiff, was procured by fraud, and also whether he purchased the machine in controversy upon a previous verbal warranty. And these were the principal questions upon the second trial of the case, and were necessarily determined as questions of fact, as we think, upon sufficient and competent evidence. The defense to the -action which is brought to recover the purchase price of the machine was the breach of the alleged verbal warranty set up in the answer, which also contains a counterclaim for damages. It was not necessary to refer to the subsequent written warranty in the answer, because, if void for fraud, the defendant would be permitted to impeach it, if set up by the plaintiff and produced on the trial. It was new matter which the plaintiff was obliged to set up in its reply. The answer is sufficient to warrant the proof of damages sustained, in that it sets up the warranty and breach; that the machine did not work well, broke down, and was useless; and claims damages in the sum of $200. The answer is informal and inartificially drawn, and contains irrelevant matter; but it is sufficient to admit evidence under it, and the case properly proceeded to trial on the merits. As the verdict limits damages to the amount of the price paid for the machine and interest, and the evidence shows nothing more, all other items of damage are eliminated from the case, and are unnecessary to be considered. The answer shows the amount of the consideration agreed to be paid for the machine for which the defendant executed his notes,— being for $100 and interest in addition to the note sued on, — and that the machine proved to be worthless. These facts,, upon establishing the warranty and breach, would, under the charge of the court, authorize the recovery of the amount which the jury allowed; [566] and the recovery ought not to be defeated, and the parties put to the expense of a new trial, because the amount of the damages specified and claimed is a different sum in round numbers, $200, and because the answer alleges items of damage which cannot be allowed in the action. Had these been stricken out, the allegation would have been that the defendant, by reason of the premises, has been put to and sustained loss and damage, to wit, in the sum of $200. The defendant could not have been misled or prejudiced on the trial by the informality. Upon the question of the warranty, and the alleged fraud of plaintiff’s agent in procuring the written contract, the plaintiff, to our minds, did not make a strong ease; but we are of the opinion that the evidence was sufficient to warrant the submission of this issue to the jury, and this court would hardly be warranted- in interfering with the verdict, especially after a second trial. The plaintiff’s agent, who was intrusted with the sale of its machines, was presumptively authorized to sell with warranty, no restrictions appearing, and the defendant was not bound by private instructions limiting his authority, of which he had no notice. Flatt v. Osborne, 33 Minn. 98, (22 N. W. Rep. 440.) And in C. Aultman & Co. v. Olson, 34 Minn. 450, (26 N. W. Rep. 451,) the defendant was permitted to prove a verbal warranty, notwithstanding the existence of a written contract which was procured by fraud. Now, in this case, the evidence of the defendant tended to show that the terms of sale, including the alleged warranty, were stated to him on his own premises ; that they were afterwards assented to by him, and he so notified'the plaintiff’s agent at his office, who said it was all right, and asked him “to sign the order.” Defendant could neither read nor write in English, and the writing which he signed was not read or explained to him, further than that the agent said it was “an order for the machine.” It had annexed to it or indorsed upon it the written warranty on which plaintiff relies, but defendant’s attention was not called to it. Assuming that his evidence is true, the agent must have known that the defendant did not know its contents, but relied upon his statement as to what it was, and that it was simply an order for the machine. [567] 'We have very carefully examined the record, and think there was no prejudicial error in the rulings of the court or in its charge as given. The object of an exception to a particular portion of a charge is to call the attention of the court to an alleged error, so that the court may correct it, if so advised. In referring to the evidence in this case, the court did, in one instances err in its statement thereof, bút corrected it on its attention being called to it, and then left the matter fairly to the jury. No other questions require consideration. Order affirmed. (Opinion published 53 N. W. Rep. 875.)