Kingman & Co. v. Meeks

Mr. Justice Cartwright

delivered the opinion of the Court.

Hunt & Anderson were local agents of appellant at Elburn, Illinois, and T. B. Strosnyder was its traveling salesman. On May 16, 1892, Strosnyder obtained from appellee a written order for a self-feeding threshing machine, consisting of an engine, separator, feeder, etc., to be shipped to Elburn in care of said local agents, which appellee agreed to receive at that place. The price was $1,825, and notes were to be made and secured by chattel mortgage.

It was provided in the order, among other things, that the articles were warranted to be of good material, well made, and with proper management, capable of doing as good work as similar articles of other manufacturers; that if said machinery or any part thereof should fail to fill the warranty, notice should be given, and time, opportunity and friendly assistance given to reach the machinery and remedy any defects; that if the defective machinery could not then be made to fill the warranty, it might be returned to the place where received and another furnished on the same terms of warranty, or money or notes to the amount represented by the defective machinery should be returned; that defects or failure in one part should not condemn or be the grounds for claiming renewal, or for the return of any other part, and that the notes for the price should be left at Kane county bank until the machine should fill the warranty, after being used in rye and oats.

Hunt & Anderson were to have a commission of twenty per cent on the sale as local agents, and when the machine arrived at Elburn they and appellee unloaded it and took it to appellee’s place in Elburn. Motes were made for the purchase price, one for $925, due on or before September 1, 1892, and the other for $900, due on or before January 1, ] 893, and on each note the following indorsement was writ-' ten: “ This note to be left with the Kane county bank until E. B. Meeks has tried the machine and sees that it fulfills the condition of the warranty.” The notes were left at the bank and a chattel mortgage was made and signed but not acknowledged, and was also left there.

Appellee had become apprehensive that the self-feeder would not be a success, before the machine arrived; and had expressed to Anderson his fears that the machine would not be of any use to him on that account. Hunt took the machine into the field, and it was tried, but would not work. Strosnyder had told appellee, for the purpose of obtaining the order, that he knew positively that the self-feeder would work and that it had been sold to different parties and had given entire satisfaction. That statement was false, and it is admitted by appellant that the self-feeder was a mere experiment and proved an entire failure. There were other self-feeding threshing machines in operation in the vicinity which were successful and operated satisfactorily. "When the machine Avas shipped, appellant sent Avith it a platform and appliances for feeding by hand, Avhich constituted no part of the machine as ordered, and appellant’s agents Avanted appellee to let them alter the machine to a hand-feed machine and have him keep it, but he refused to do so. The machine was taken back to appellee’s shed by his employe and the local agent sent to appellant for an expert. The machine AAras afterAvard taken out tAvice and tried, but the parties sent by appellant failed to make it Avork. Appellee told each of them that he would not have the machine and it was put back in his shed and remained there.

Appellee Avrote to appellant that the machine had failed to fill the warranty, that the self-feeder Avas Avorthless, and specifying other alleged defects, and that he should deliver the machine to Hunt & Anderson or leave it where they might say, and demand the return of his notes. AfterAvard he wrote again that Hunt & Anderson claimed they had nothing to do Avith the machine; that it Avas subject to appellant’s order and that he Avished it removed. Appellant made no reply to either of his letters, but began this suit and declared upon the written order for the machine, adding the common counts.

Appellee pleaded the general issue and gave notice that he Avould prove that the contract \\ras obtained by false and fraudulent representations; that the clause in the contract referring to Avarranty related to a verbal Avarranty, and that both the Avritten and verbal Avarranty failed, and he offered to return the machine but acceptance Avas refused. There was a trial and appellee obtained a verdict and judgment in his favor.

Appellant contends that the court erred in admitting evidence of false statements made by Strosnyder in obtaining the order and of a verbal warranty made by him, together with his statement that the clause in the order providing for leaving the notes in the bank until it was seen that the warranty was filled, related to that verbal warranty. Appellee exacted a specific warranty which was embraced in the writing, and parol evidence was not admissible to prove that Strosnyder at the same time said that he knew that it would work, and that it had given satisfaction to others, or that he then verbally warranted the machine. Benjamin on Sales, Sec. 942. But the admission of the evidence did no harm in this case in the view that we take of the contract, since the failure of the written warranty was as absolute as that of the supposed verbal warranty, and the contract gave to appellee a right of return upon such failure as complete as the right to rescind a sale and return property on account of fraud.

But it is also insisted that the court was wrong in construing the contract and in refusing instructions which stated that the contract was divisible; that under its terms appellee was bound to return such parts as did not fill the warranty and keep and pay for all such parts as did, and that if the machine filled the warranty, except as to. the self-feeder, which was admitted to be worthless, the jury must find a verdict for the contract price, less the amount to be deducted for the self-feeder.

Proof was offered on the trial that there was a list price of the self-feeder and that such price was $200, but the proof was not admitted. It is contended that the contract was divisible and that appellant could recover to the extent of its performance. This contention is based upon the provisions in the order, that if defective machinery could not be made to fill the warranty it might be returned and another furnished on the same terms of warranty, or money and notes to the amount represented by the defective machine should be returned, and that defect or failure in one part should not condemn or be grounds for claiming renewal, or for the return of any other part.

The things to be furnished by appellant were certain and fixed and were described in the contract, and the consideration for the whole was single and entire. Ordinarily no part of such a consideration can be recovered in an action on the contract until all the things to be furnished for such consideration have been furnished. The contract made no apportionment of the price among the several articles and afforded no means for such apportionment. The subject-matter of the contract was a threshing machine, although the separate parts were specified, and the machine was to thresh grain, and rye and oats ivere especially named. That fact is to be considered in determining whether the parties manifested an intention in their contract that appellee should pay for such parts as might be furnished. If such was the intention he might get no threshing machine, but be compelled to pay for the hose, belt or whistle named in the order. The failure was in an essential part of a self-feeding threshing machine, and the consideration being single for the entire machine, we think that the court was right in excluding the evidence that there was a list price for that part, and in refusing to instruct the jury as requested. There were other defects claimed to exist in the machine which might perhaps have been remedied, but the utter failure of the feeding apparatus was irremediable, and without it appellee did not have the threshing machine which appellant was to furnish to him.

The point is also made that appellee should have returned the machine to Elburn, where it is said that he received it. The machine was shipped to Elburn in care of appellant’s agents, Hunt & Anderson, and they, together with appellee, unloaded it. After the trials by appellant’s agents it was left in appellee’s shed. But if it was delivered to appellee at Elburn when taken off the cars and set up rather than at the shed where it remained, a refusal by Hunt & Anderson to receive it and the failure of appellant to reply to his let ten’ notifying them of such refusal or to give any direction what to do with it, relieved him from any further duty concerning the return of it.

It appears to us that justice has been done, and the judgment will be affirmed.