Keeves & Co. v. Martin , 20 Okla. 558 ( 1908 )

It is first contended by plaintiff in error that the defendant was bound, as a condition precedent, to pay the $500 note when it matured before he could avail himself of the benefits of the stipulation of warranty against plaintiff, and rescind said contract, citing some authorities in support of its contention. On an examination we find that the authorities referred to have no application to the facts in this record. Whilst it is true that in the original order for the machinery defendant agreed to pay $500 on said machinery in cash, but subsequent thereto the plaintiff arranged to take a note therefor in like sum, due at a subsequent date, which, in connection with the other notes for the purchase money for said machinery, was secured by the two chattel mortgages heretofore referred to, the plaintiff thereby waiving the cash payment. Further, there is nothing in said mortgage that indicates that it was the understanding or intention of the parties that said $500 note should be paid regardless of whether or not the machinery measured up to the conditions of the warranty, or that the plaintiff complied fully with its contract and terms of guaranty as a condition precedent to asserting his rights under said agreement. The proof without contradiction shows that one Nighswonger was the local agent of the plaintiff at Alva, and, when informed by defendant's wife of the defect in the machinery and its failure to do the work it was guaranteed to do, he wrote and prepared the notice in triplicate heretofore referred to, retaining one, and the defendant, through his wife as agent, sent another by registered letter to the plaintiff at its home office in Columbus, Ind., and delivered the other one to her husband. On defendant's theory of the case, who was first in default? If it was the duty of the plaintiff to furnish the machinery in accordance with its contract, and had failed to do so, although duly notified, why should defendant be precluded from asserting his rights because within the time he had to test the machinery, before the $500 note finally matured, including the days of grace, he found it defective, and not in accord with the warranty, and therefore refused to pay until the machinery was made to comply with the stipulations of the contract? When he made and delivered the $500 note, the machinery was to be as warranted, and if he ascertained different, and as a result of said discovery failed to pay said note, awaiting the action of the plaintiff in making good its warranty, he certainly forfeited no rights thereby. Forfeitures are not favored, and a construction working a forfeiture, if there is any other reasonable construction to be made, is not to be favored or adopted.Baley v. Homestead Fire Ins. Co., 80 N.Y. 21, 36 Am. Rep. 570.

It is further contended by plaintiff in error that there was no proof to show that the defendant had given the written notice to plaintiff's local agent, and also to the plaintiff by registered letter of the defect in the machinery. In reference to this notice, the defendant testified as follows:

"Q. When this machine failed to do the work for which you desired and purchased it, what did you do? A. I notified the company. Q. Did you notify any one else? A. I notified the local agent here. Q. Who is the local agent? A. Mr. Nighswonger was at that time. Q. And the company is at Columbus, Ind.? A. Yes, sir."

On cross-examination the defendant further testified to sending the company a registered letter, and stated in reference to a conversation with Mr. Tobin, the general agent of the company:

"I told him the machine was not doing good work, and asked him if he had heard from the company — from the registered letter I sent them to that effect."

And, further, on cross-examination, the defendant testified:

"Q. Why didn't you tell them then and there that the machine was absolutely worthless for the purpose for which you purchased it, and you wouldn't give them any mortgage on your farm? A. I did notify the company. Q. You never notified the local agent, you say? A. I did notify the local agent. Q. Did you tell her (referring to his wife) when she went to town to notify the company as to the fault in the engine and machine? A. I did. I told her to notify the company I couldn't control the machine in regard to saving the grain."

Defendant's wife corroborated her husband as to the foregoing. In addition, the defendant introduced a registry receipt showing that on the 25th day of July, 1903, a letter was registered from the defendant to the plaintiff at its home office in Columbus, Ind., at the post office at Alva. However, in view of the conclusion hereinafter reached, it is not necessary to determine whether or not this was sufficient proof to require the submission to the jury for its determination as to the notice required to be sent by registered letter. The defendant offered in evidence a triplicate copy of the letter which was written by the said Nighswonger, the local agent of the plaintiff at Alva, where the machinery was ordered, the defendant's name being signed thereto by his wife, who was duly authorized thereto; one of the triplicate copies being retained for the defendant, and another by the said local agent, and another sent by registered letter as was evidenced by said registry receipt heretofore referred to, to the plaintiff at Columbus, Ind.

Defendant in his answer alleges that he gave written notice of the failure of said machine to be and do the work as warranted to the said plaintiff at its home office at Columbus, Ind., and its local agent at Alva, Okla. This triplicate copy was excluded from the consideration of the jury by the trial court on the theory that no proper notice had been served upon plaintiff by the defendant to produce the original upon the trial of said cause. In the case of Commonwealth v. Messingeret al., 1 Bin. (Pa.) 273, 2 Am. Dec. 441, the defendants were indicted charged with stealing a bill obligatory for 175 pounds. On appeal, in speaking of this question whether or not parol evidence was admissible to prove the contents of the bill obligatory described in the indictment, without having given notice to the defendants or one of them, in whose hands it was, to produce at the trial, the court said:

"He [referring to the defendant] is informed by the indictment in what manner the paper in his possession is described, and, if it is not truly described, he has it in his power to show it. This in effect is notice. * * *"

See, also, 1 Greenleaf on Evidence, § 40. In this case the defendant alleged in his answer that the plaintiff had been notified in writing of the defect in the machinery. Upon the same theory it might be contended that this allegation put plaintiff upon notice that upon the trial of said cause the defendant would contend that he had notified plaintiff of the defects, as provided in the contract of warranty; but it is not necessary in this case for us to determine whether under such circumstances the allegation in defendant's answer would be sufficient notice. It further might be contended that the three copies prepared by plaintiff's local agent were each triplicate originals. In the case of Hubbard v. Russell 24 Barb. (N.Y.) 408, it is said:

"The letter retained by plaintiff's attorney and that sent by him to the defendants were duplicates. They were written simultaneously, signed by the same individual, contained the same words, and were addressed to the same person. Each was an original — the one retained as much as the one sent. In the case of Ivry v. Orchard, 2 Bos. Pul. 39, the plaintiff's attorney made out two papers (notices) precisely to the same effect, and signed them both for his client, one of which he delivered to the defendant, and the other, which was produced on the trial, he retained, and it was held that the one retained might be given in evidence, without proving any notice to produce the other. Lord Eldson said that the strong inclination of his opinion was that the paper retained was a duplicate original. That the practice of allowing duplicates of this kind to be given in evidence seems to be sanctioned by this principle that, the original delivered being in the hands of the defendant, it is in his power to contradict the duplicate original by producing the other if they vary. * * * Starkie (volume 2, 275) quotes this decision with approbation, and says: 'It seems to be sufficient in all cases to prove the service of a duplicate notice." '

However it is not necessary for the proper determination of this case to rest this matter upon that point.

In the case of Carroll v. Peake, 1 Pet. (U.S.) 21, 7, L.Ed. 36, it is said:

"The bill of exceptions does not put the objection to the papers offered in evidence distinctly upon the ground that, being a copy, it could not be used without timely notice to produce the original. Although some doubt exists whether the objection ought not have been placed on that ground, in the court below, in order to make it available here, yet, as the whole argument has proceeded in this court upon the assumption that the question is sufficiently raised upon the bill of exceptions, we will so consider it. The principle relied upon is that copy cannot be given in evidence if the original be in the possession of the adverse party, unless timely previous notice has been given him to produce it at the trial. This is certainly true as a general rule. But in examining the numerous adjudged cases to be found in the books, in which this general rule has been asserted and applied, we have been able to find no case just like this. They are all cases where the copy offered had not been made by the party against whom it was attempted to be used. This is a case in which the execution of the original is distinctly admitted; and the paper called a copy is admitted to be wholly in the defendant's handwriting. From the nature of the transaction he was entitled to, and must be presumed to have, the custody of the original. The copy, made out by himself, must be presumed to have come to the plaintiff's possession by the defendant's own act; and, by making and delivering it to the plaintiff, the defendant consents that it shall be genuine and true. We think that under the circumstances this case forms a just exception to the general rule, and that it is not competent for the defendant below to allege against his own acts and admissions that this paper does not, or may not, contain all the verity and certainty of the original. So far we have considered this paper as if it ought to be regarded in the light of a copy. But we think that is not its true character as it was presented to the court and jury. We think that, under the circumstances, and to the purposes for which it was offered, it may fairly be regarded as an original."

In the case before this court the three triplicate copies, which may properly be termed triplicate originals, were made or written simultaneously by the local agent of the plaintiff in error, and the defendant's name was signed thereto by his wife in the presence of the said agent. One was left for the local agent, and the other two were delivered by its local agent to the defendant's wife, one copy, of course, to be retained by the defendant, and the other to be sent by registered letter to the plaintiff at Columbus, Ind. We conclude that, under such circumstances, this case forms a just exception to the general rule; and that it was not competent for the plaintiff to allege against the acts of its local agent that this paper does not, or may not, contain all the verity and certainty of the original, for the agent of the plaintiff on the witness stand swore that he made these triplicate originals, and that they were exact copies. There is no conflict as to this. We think that under the circumstances, and for the purpose for which it was offered, it may be fairly treated as an original.

"Where the instrument to be produced and that to be proved are duplicate originals, prior notice to produce is not necessary, for, in such case, the original being in the hands of the opposite party, it is in his power to contradict the duplicate original by producing the other if they vary." (1 Greenleaf on Evidence, § 561.)

That said letter was registered by mail, addressed to the plaintiff at Columbus, Ind., there is no conflict. The question might arise, however, as to why the defendant did not introduce the return registry receipt to show actual delivery to plaintiff. Evidently the letter or notice was when registered in an envelope marked, "Return to U. G. Nighswonger"; for the receipt was made out in favor of said Nighswonger, and afterwards the original receipt was changed to Hugh Martin, but no change was made on the carbon copy of said receipt, and the assistant postmaster testifies that the return registry might not have been changed, and in that event it would have been returned to the local agent, instead of the defendant.

"If a letter is sent by post, it is presumed from the known course in that department of the public service that it reached its destination at the regular time, and received by the person to whom addressed." (1 Greenleaf on Evidence, § 40; Breed v.First National Bank, 6 Colo. 235.)

We necessarily conclude that said letter should not have been excluded from the consideration of the jury, and, with said letter before the jury with such presumption of delivery, there was proof of notice to plaintiff in accordance with the terms of the contract of warranty. In the case of Jobbins v. Gray, 34 Ill. App.? 219, the court says:

"Under the circumstances the court ought to have admitted the testimony. But the evidence is preserved in the record, and we can see from it that the plaintiff had a good and perfect title to the land. Appellant cannot be allowed to procure an erroneous ruling in his favor and exclude competent and material evidence on the trial when it is offered and ready to be produced, and then on appeal insist that for the want of that very proof the decree cannot be sustained. A party will never be allowed to so take advantage of his own wrong, or the errors of the court induced on his own motion, and then compel the opposite party to suffer the consequence. Such a proceeding would be the merest trifling with the court."

It is contended, however, that said notice to plaintiff was not specific and full enough, but, the provision of such a contract being intended for the benefit of plaintiff, it was certainly specific enough to put the plaintiff on inquiry, and, if it failed to avail itself of such notice and in good faith attempt to mend or cure any defects, but stood on its rights, viewing the matter from a technical construction, it did so at its peril. Baker v.Nichols Shepard Co., 10 Okla. 689, 65 P. 100.

The instructions of the court fairly submitted the issues. There appears no reversible error in the record. Let the judgment of the lower court be affirmed.

Hayes, Kane, and Turner, JJ., concur; Dunn, J., disqualified, not sitting.