Schmidt v. Jutting

POLLEY, J.

This action was -brought to recover on a promissory note -and to foreclose a chattel mortgage given to secure the payment thereof. The -controversy grew -out -of the purchase and sale of a threshing machine, traction engine, and appliances connected therewith. The contract was the result of a conversation held between one of the plaintiffs and the -defendant during -the month -of June, 1907.' Plaintiff and -defendant together examined -the machinery then on plaintiffs’ premises, and agreed upon the price; but defendant -did not m-ove or take possession of it until about the latter part of the following August, when he had it-removed to his -own 'place. The purchase price agreed- upon was $700. This was evidenced by two notes for $350 each; one -payable -on the11st -of December, 1907, and the -other -payable- on the 1st day of December, 1908. The note payable on December 1, 1907, was paid -at maturity; but payment on the other was refused, and this -suit is the result -of -such- refusal. Plaintiff recovered judgment for the amount of the note, with interest and costs, -and defendant appeals.

[1] Defendant, in his answer, admits -the execution and delivery of the notes, but pleaded, as a defense, partial failure of consideration and breach of warranty, -and asked for -damages occasioned thereby. At the time of the making of the contract, the machinery was; and for two years past had been, -standing o-u-t in the weather. It (the engine especially) was badly ru-sted -and- in a generally dilapidated condition. This- was noticed and remarked upon by the defendant; but the plaintiff told the defendant: “The .engine is all right to do your -ó-wn threshing with; good for a long time to -come.” And it is these words t'ha-t defendant -claims constituted the warranty by plain-tiffs. Defendant claims -that he believed this -statement of -plaintiff’s, and relied upon it as an inducement to make, the purchase; and counsel for both appellant and respondents devote considerable time and space, in their briefs, to the proposition -as to whether these words constituted a warranty or not. Whether they do or not depends upon the circumstances of the particular case, upon the knowledge or lack of knowledge of either or both of the parties, and upon , the opportunity or lack of opportunity afforded the defendant for an inspection and examination of. the article purchased. No deception or fraud. by plaintiff is claimed. After plaintiffs -had given defendant their price of $700, and terms upon which they were willing to sell the máchinery; defendant testified that he gave plaintiffs his final answer in the following language: “I told him 1 would give him that after the machine was started up and run satisfactory.” The price was a lump sum on the entire outfit, without setting a special price or yalue on any particular part or piece of the- machinery.

[2] This was in June, 1907, and about the latter part of the following August, as before stated, the defendant, together with his son and an engineer, whom he had employed for that purpose, went to plaintiff’s place, fired up the engine, and started to- move it to defendant’s place. It was discovered at once that the boiler was so badly rusted that it leaked water; and the steam pipe, leading the steam from the boiler to the cylinder, leaked steam; and, because of these leaks, it was, difficult to get up' steam, and impossible to keep up steam' enough to run the machinery continuously for any length of time.

On the 13th of September, defendant commenced threshing his grain, using said engine as a means of power. The. boiler and steam pipe leaked so much water and steam that it was impossible to keep up sufficient steam to .run the separator continuously for any length of time; but, notwithstanding this condition and defendant’s knowledge thereof, on the 14th day of September he completed the purchase and executed the notes and chattel mortgage in question. The first note, coming due was paid without complaint. At the trial of the case, defendant admitted that he bought the engine on trial; that he tried it; and that, after he had tested it, he was satisfied to make the deal. Under these undisputed facts, it appears that he did not rely upon the alleged warranty of the -plaintiffs, but u-pon his own judgment, after a trial of the machinery,--and bought i-t and gave his notes with full knowledge of its defects.

It is true the evidence -shows that the engine blew up during the following fall,- -and was- probably of but little value when defendant purchased i-t. But, as he bought it with full knowledge of its condition, we - cannot -say that he did not get what he bargained for, and can see no reason for reversing the judgment. Respondents, in their brief, asked this court to award them -damages under subdivision 5 of section 411, Code -of Civil Procedure; but we do not believe .that this .appeal is wholly without merit, and the respondents’ request in this respect will be denied.

The judgment of the trial court is -affirmed.