Fox v. Stockton Combined Harvester & Agricultural Works

should do and perforin good and satisfactory work in the harvesting, cutting, and saving of grain, and that each of said harvesters should give good satisfaction in the doing and performing of the work for which they had been manufactured, to wit, the harvesting, cutting, and saving of grain in the harvest-fields; that relying upon and in consideration of said representations, covenants, agreements, warranties, and guaranties as aforesaid, made by and on behalf of said defendants to these plaintiffs, said plaintiffs did agree to take, receive, and accept said harvesters with said improvements, and pay therefor the aforesaid sum of three thousand six hundred dollars ($3,600); that on or about the-day of June, 1884, said defendant did deliver, in pursuance of said contract, two twelve-foot Shippee combined harvesters, with Shippee and Grattan improvements, and these plaintiffs received the same, and thereupon paid to the defendant the aforesaid sum of three thousand six hundred dollars ($3,600); that the plaintiffs took said harvesters to their grain-fields, and with all proper precautions, aids, and management undertook to work with said harvesters, but they failed to do any work of any value whatever in harvesting, cutting, or saving grain; and that after ascertaining that said machines would not do the work which they were guaranteed by defendant to do, the plaintiffs returned them to the defendant, and demanded of defendant the sum paid for them, and the further sum of three thousand dollars damages, sustained by plaintiffs by reason of the promises aforesaid.

The answer of the defendant admits that it represented to plaintiffs that said machines were of great value in the harvesting of grain; denies that in March, 1884, it contracted to manufacture and deliver to plaintiffs two twelve-foot Shippee combined harvesters and Grattan improvements, as alleged in the complaint. Other allegations are denied, which it is unnecessary to enumerate, as the decision of the cause must turn upon the

second defense to the action, in which it is alleged that the defendant never entered into any contract or agreement with the plaintiffs jointly, but contracted with each of them separately; that it sold and delivered one machine to Fox, and afterwards another to Tilton; that the contracts of sale and delivery are in writing, and that copies of them are attached to the answer and made part thereof. One of the copies attached purports on its face to be an agreement between the defendant and plaintiffs for the manufacture and delivery by the defendant to Fox of one twelve-foot Shippee combined harvester, with Shippee and Grattan improvements, for the sum of eighteen hundred dollars, gold coin of the United States. This is followed by other stipulations, which it is unnecessary now to consider. The other copy attached purports to be a contract been the defendant and the plaintiff Tilton, of like import with that between the defendant and plaintiff Fox. On the trial the plaintiffs were proceeding to prove by oral testimony the contract as alleged in their complaint. The defendant objected, on the ground that plaintiffs had not, as provided in section 448, Code of Civil Procedure, filed an affidavit denying the genuineness and due execution of the written instruments, of which copies were contained in the answer. As we construe the questions, objections, and rulings, the court regarded the plaintiffs as occupying the position they would have occupied if they had declared upon or proved a contract or contracts in writing similar to those contained in the answer. This we think to be untenable. The plaintiffs admitted the genuineness and due execution of the instruments as contained in the answer. But did not, as we view it, admit that those were the contracts under which they purchased the machines mentioned in the complaint. The plaintiffs allege a contract made with them jointly. Two contracts made with them severally would not conclusively prove that there might not have been one made

with them jointly. The due execution and genuineness of the instruments were admitted, but it was not admitted that those were the contracts sued on. The plaintiff's must be deemed to have denied all the other allegations of the answer. We think they should have been permitted to prove the contract alleged in their complaint, and that the court erred in denying them the right to do so. For which reason the judgment and order denying them a new trial are reversed, and the cause is remanded for a new trial.

McFarland, J., and Thornton, J., concurred.