Ventura Manufacturing & Implement v. Warfield

Plaintiff commenced the action to recover the sum of $1,967.50, and interest thereon, due on a promissory note, dated September 24, 1912, in favor of plaintiff and signed by defendant. In this note it was set forth that it was given in consideration of the sale by plaintiff to defendant of a “30 H. P. Pioneer Engine. ’ ’

The case was tried before a jury and judgment was entered in accordance with their verdict, as follows: That defendant was entitled to recover from the plaintiff the sum of one thousand five hundred dollars, paid by him on account of the purchase of the engine, together with interest thereon; that defendant was entitled to have said promissory note surrendered and canceled as though fully paid; and that plaintiff is entitled to the possession of said tractor. From said judgment plaintiff appeals.

The defendant interposed an answer to the complaint and also filed a cross-complaint and set up a counterclaim. The defendant by answer denies the vital averments of the complaint and sets up an affirmative defense, based upon alleged false representations by the plaintiff with respect to the character of the engine for capacity and durability, and relies upon the alleged violation by plaintiff of the terms of the written warranty attached to and a part of the contract of sale. The cross-complaint repeats the allegations of the answer respecting the alleged false representations by the plaintiff and charges that solely by the representations so made the defendant Was induced to enter into the contract for the purchase of the tractor; charges that the engine which was delivered to the defendant by the plaintiff was not the engine which he agreed to buy and which the plaintiff agreed to deliver to him; alleges that the plaintiff violated the terms of its warranty and that, upon learning of the difference in the engine delivered and the engine which he purchased and the plaintiff promised to provide him with, and of the defects of the engine delivered, the defendant immediately notified plaintiff thereof and rescinded the contract, and demanded of the plaintiff a return of the cash money- paid on account of the sale and the eancella

The foregoing, while only a brief statement of the allegations of the pleadings filed by the defendant, is sufficient for present purposes and to show the general issues upon which the cause was tried and upon which it is submitted here by this appeal.

The facts are briefly these: Some time in the month of May, 1912, one C. W. Horstman, a salesman for plaintiff, solicited defendant to purchase a tractor and exhibited to him certain pamphlets and catalogues describing gas engines and also photographs thereof. The negotiations led to an agreement by the defendant, on the twenty-second day of June, 1912, to purchase a certain engine, a description and a photograph of which were contained in the pamphlets and catalogues referred to. Thereupon, and on the day named, the following order or agreement was signed by the defendant and delivered to plaintiff through its salesman, Horstman:

“Order for Gas and Gasoline Engine:

“To Ventura Mfg. and Imp. Co. Town Ventura, State Calif.

“The undersigned of Princeton Post Office, County of Colusa, State of Calif. Rural Route No. - hereby purchases of you, subject to all conditions of agreement and warranty printed on back of this order and made a part hereof, to be shipped to G. A. Warfield Ranch, Marysville, Calif.— ‘One 30 H. P. Pioneer’—Pioneer Tractor gas or gasoline engine (reg. size of pulley), complete including necessary fixtures, and to settle for said engine by payment of (3467.50) thirty-four hundred sixty-seven 50-100 Dollars as follows: Fifteen hundred Cash on delivery of engine, Nineteen hundred sixty-seven 50-100 note due Nov. 15, 1912. It is expressly agreed that this order shall not be countermanded, and that said engine shall remain and be held by the undersigned as your exclusive property until purchase money shall have been paid in full. It is expressly agreed that the engine shall be and remain personal property in what so ever manner it may be annexed to realty.

“Dated the 22-nd day of June, 1912.

“Sold by C. W. Horstman.

“Signed: G. A’. Warfield.”

The warranty is in the following language:

“Pioneer Tractor Co. (Incorporated) warrants the within described engine to do good work, to be well made, of good materials, and durable if used with the proper care. If upon trial, with proper care, the engine fails to work well, the purchaser shall immediately give written notice to Pioneer Tractor Co., Winona, and to the agent from whom it was purchased, stating wherein the engine fails, shall allow a reasonable time for a competent man to be sent to put it in order, and render friendly assistance to operate it. If the engine cannot then be made to work well, the purchaser shall immediately return it to said agent, and the price paid shall be refunded which shall constitute a settlement in full of the transaction.

“Use of the engine after three days, or failure to give written notice to said Company and its agent, or failure to return the engine as above specified, shall operate as an acceptance of it and a fulfillment of this warranty. No agent has power to change the contract of warranty in any respect and the withih order can be canceled only in writing from said Company’s Winona Office.

“This express warranty excludes all implied warranties and said Company shall in no event be liable for breach of warranty in an amount exceeding the purchase price of the engine. If within ninety days’ time any part proves defective, a new part will be furnished on receipt of part showing defect. ’ ’

On the second day of September, 1912, a tractor was delivered to the defendant at his ranch by Horstman. This, as the defendant testified, was after the harvesting season had ended, and when there was practically no opportunity for testing out the tractor as fully as was desirable and necessary.

There is, in point of fact, no dispute as to the proposition that there were material differences in mechanical construction between the engine purchased.by the defendant and which the plaintiff agreed to furnish him with and the engine actually delivered. But, for the purpose not only of showing the differences referred to but that from the time, approximately, that the engine was received by the defendant, he was dis

Accompanying Horstman, when the engine was delivered to defendant, was a Mr. Muir, an expert sent by the Pioneer

There is evidence that Borstman and the plaintiff attempted to reason with defendant and show him that by proper handling the tractor would do the work and so come up to the warranted test as to capacity and durability, and that thus the defendant was persuaded to give it a further trial. Accordingly, on the twenty-fourth day of September, 1912, defendant made a cash payment of one thousand five hundred dollars and executed and delivered to Borstman the note sued upon, it being made payable on August 1, 1913, which would be after the harvest season of 1913. After the trial made by Muir in the early part of September, no attempt was made to use the tractor until November, when defendant took it out for the purpose of plowing. Be testified: “After I got the engine started I had difficulty in keeping it running. The ignition did not seem to work well, and the fan gave me considerable trouble. . . . The shift gears would not work well. I worked with it several days, plowing, or trying to plow, and finally parts of it began to go to pieces. The fans broke. I had to go down and get a fan-belt in town, and the magneto went out of commission entirely from no cause that I could see, and I took the magneto down to San Francisco and got another one; then I got an engineer to help me on the engine and the two of us worked with it and fought it, and we got the engine finally to go a little piece. . . . Then the engine broke down. ... It took me a week to plow a piece that should have been plowed in two days. The fan-belt proposition went to pieces, the fan-belt and the bearings that run this shaft. . . . We

In November, 1913, defendant attempted to harrow with the tractor, but there was a recurrence of the troubles he had theretofore had—the spokes getting loose, making it necessary to get new ones, the connecting rods not staying tight, the fan-belt breaking, the shift gears giving trouble, the engine heating and the magneto giving trouble so that he ran on the battery. He finished his harrowing with mules and put the tractor back in the shed. On the 14th of May, 1914, he started to do some grading and on the way to the field with the tractor the clutch broke; he sent to plaintiff for a new disk, which came on May 25th. He still had trouble with the engine, and, after doing about one-third of the grading, he discontinued the work. In June he hired an engineer and they worked ten or fifteen days on the engine and he then hired another engineer to inspect it. They commenced harvesting and, on the third day, ‘ ‘ everything went to pieces, and we opened it up and the crank shaft and connecting rods and everything were in a pile.” He telegraphed plaintiff for another crank shaft, which came to him after a long delay and after he had tried to have the old one welded in Sacramento. He hired an expert mechanic to set the crank shaft and the engine was put back “in practically as good condition as it could be put.” The next day the engine commenced to heat and sometimes two-thirds of the day was lost waiting for the engine to get cool. The harvesting, which lasted from June 9th to July 23d, was not successful, the witness stating that he probably lost half of each day on account of the engine. Then defendant tried to use the engine for pumping water for irrigating an orchard, but could not keep it cool, and after two or three days he took it back to the shed. On the way there, while running on a county road, the front axle broke. He had this repaired and then placed the tractor in the same place in the

Expert testimony introduced by defendant tended to show that the construction of the engine was not proper in certain specified particulars, and the engineer sent by plaintiff to work on the tractor stated, on cross-examination, that “it was essential that the fan construction should be improved and changed to make it of any practical value,” and that the mechanical construction of the engine should be changed.

Certain correspondence was introduced in evidence. The first letter in the record is dated Ventura, November 20, 1912, written by plaintiff to defendant, and refers to a letter theretofore received from defendant in regard to “spikes for wheels. ’ ’

On December 26,1912, defendant wrote plaintiff as follows:

“The engine [Pioneer 30] which I purchased from you by contract has proved to be far from satisfactory, and along with that your company, through Mr. Charles Horstman, have misrepresented things to me. The engine is not built for the work intended or for any durability. It is now out of commission. I have asked you people to send your mechanic, but no answer; have asked you to send extras from your shops at Ventura, instead I am compelled to pay express on extras from Ind., not getting what I asked for, have to have the extras made here at the foundry or any other place at a great expense. Therefore, according to our agreement the engine is yours. I hereby cancel the payment of the note given you in payment of the engine. I ask you to send your representative here and inspect the engine, and you will find what I tell you is the truth. The engine is at your disposal. I am stuck with a contract which your engine should do but is unable to finish.”

Plaintiff replied to the above letter, stating: “We feel confident your trouble lies in the fact that you do not know how to take care of the engine properly. If you had the right kind of an engineer on the machine, there would be nothing wrong with it.” It was further stated that Mr. Horstman would call upon defendant.

On January 8, 1913, Horstman wrote to defendant: “Have sent off several wires yesterday to get some definite line-up from the Pioneer people with regard to their decision in the broken engine wheels.”

The defendant, on March 8, 1913, wrote to plaintiff a long letter, calling attention to alleged representations by Horstman regarding the engine, recapitulating particulars in which it had proven defective, and demanding the return of the one thousand five hundred dollars paid by him and the cancellation of the note.

On March 27th, the plaintiff replied to the above letter, stating, among other things: “When you signed the note, this was an acceptance of the engine. As for the note, it is out of our possession. You will take particular notice of the warranty on the back of the contract, which stated that ‘no agent has the power to change the contract of warranty in any respect.’ . . . We are well satisfied it is no fault of the engine that it was in the condition it was in.”

Other correspondence followed, showing that defendant had gone to Ventura to endeavor to effect some sort of settlement, and, on September 9, 1913, defendant wrote to plaintiff again demanding the return of the money paid by him and the note, “or deliver to me an engine of equal value that will do the work fully guaranteed to my satisfaction. ’ ’

The defendant explained, and the written correspondence above referred to corroborated him in that particular, that he made repeated trials of the tractor upon the solicitation and persuasion of Horstman, after in the first instance and the several times thereafter, he notified Horstman and the,plaintiff that the machine was not the one which the latter agreed to deliver to him and that the one delivered had failed', after the several trials, to meet the warranted test.

First, it is proper to observe that the transaction out of which this controversy arises was wholly between the plaintiff and the defendant, and that the assumption by the plaintiff, in its argument of the points submitted in support of this appeal, that the transaction was one between the Pioneer Tractor Company, the manufacturer of the tractor in question and defendant, cannot be maintained. By this statement we mean to say that the verdict, which is amply supported, is- conclusive upon that question. The order or agreement is addressed to the plaintiff and the initial language thereof is: “ The undersigned [defendant] . . . hereby purchases of you, subject to all conditions of agreement and warranty printed on back of this order and made a part hereof . . . ‘ one 30 H. P. Pioneer Tractor gas or gasoline engine.’ ” The agreement or order further provides that “said engine shall remain and be held by the undersigned [defendant] as your [plaintiff’s] exclusive property until the purchase money shall have been paid.” The evidence further shows that the transaction, so far as the seller was concerned, was from its beginning to and including the time at which this action was instituted, wholly and solely, and without any interposition whatever by the Pioneer Tractor Company, conducted by the plaintiff. Moreover, the promissory note executed by the defendant for the balance of the purchase price after a cash payment by the defendant of one thousand five hundred dollars- had been made was made to and in favor of, and in the name of, the plaintiff. Furthermore, the note declared upon itself states that the consideration therefor is “that the said Ventura Manufacturing and Implement Company has agreed and promised that upon payment of said note, principal and interest, at maturity, . . . they will sell and transfer to the undersigned [defendant], at the price of said principal and interest, the thirty H. P. Pioneer Tractor which the said Ventura Manufacturing and Implement Company has this day intrusted to the care of the undersigned.” Again, the note reads: “It is admitted and agreed that the said property so intrusted is the property of the said Ventura Manufacturing and Implement

But the contention is vigorously pressed that, assuming that the transaction was between the plaintiff and the defendant, there is no evidence showing that Horstman gave the defendant the right of any further trial of the engine for the purpose of testing its efficiency for the purposes for which it was intended and bought by the defendant than was expressly provided for in the warranty. It is further contended that, even if it had been made to appear that Horstman did allow the defendant such further trial of the engine, there is no evidence showing that he had authority to do so, and that, therefore, in doing so he exceeded his authority as agent and violated the provision of the warranty that “no agent has the power to change the contract of warranty in any respect, and the written order, can be canceled only in writing from said Company’s Winona office. ’ ’

The theory upon which the defendant sought to present the case at the trial in the court below was that, the tractor delivered not being the one which the plaintiff agreed to deliver to the defendant, the negotiations between Horstman and the defendant as to the tractor delivered constituted a new contract, and that oral testimony disclosing the terms and conditions of such contract was necessary and proper. The trial court held that the defendant’s pleadings failed to set up a new contract, but relied upon the original order and warranty, and, therefore, excluded testimony of a new contract. But we do hot regard this as important in this ease. The testimony, we think, very clearly shows: 1. That Horstman had the authority, as the plaintiff’s sales agent, to give the defendant further opportunity to try out the engine; 2. That he did do so; 3. That the tractor delivered to the defendant failed to do the work for which such a machine is intended; 4. That it must be held that, under all the circumstances of the ease, the defendant duly notified the plaintiff that the tractor was a failure and would not satisfactorily perform the work for which it was intended.

The third proposition above stated is, we think, abundantly supported by the evidence, to some of which we have specially referred above. We need not, therefore, reproduce herein upon that question further or other testimony of which there is an abundance.

We may, however, refer to some of the testimony which tends strongly to show that Horstman had authority to make any arrangements- with defendant that his judgment might dictate. Although the written order for the tractor was executed by the defendant and delivered by him to the plaintiff on June 22,1912, the tractor was not delivered until the month of September of that year, which was after the end of the harvest season and at a time when a proper test of the engine could not well be made. The cash payment was made and the note for the balance of the purchase price given at the time of ■the delivery of the engine; and, although the written order of June 22d expressly provided that the note should be made payable on November 15, 1912, the said note, upon the consent of Horstman, was made payable August 1, 1913, which, as is obvious, was- at a time of the year when the harvesting season was well near an end. The plaintiff accepted the cash payment and the note. The extension of the' time of payment of the note beyond the harvesting season of 1913 and the acceptance by the plaintiff of the new arrangement so made by Horstman are .circumstances which tend in some degree to show that Horstman had general authority as a sales agent of the plaintiff, and to show further that he not only did extend the

It will not, of course, be disputed that the failure of the engine to come up to the standard for efficiency and durability represented and warranted by the plaintiff constituted a breach of the warranty. That it did wholly fail to come up to that standard, the evidence strongly tends to show. Nor will it be doubted that there is evidence warranting the implied finding that Horstman was a general sales agent of the plaintiff, vested with full authority to do whatever was reasonably requisite to effect a sale of the machine to the defendant; that, as such agent, he was authorized to waive any of the conditions of the original contract and waive written notice by the defendant of the defective and unsatisfactory operation of the tractor; and that he did, if, indeed, the plaintiff itself did not, waive the condition specified in the written order as to the time within which the defendant was to be restricted in trying out or testing the efficiency of the engine. In fact, as before suggested, the written order did not involve an unconditional agreement of sale, and the fact that the engine delivered was in material particulars different in mechanical construction from the one which the plaintiff agreed to deliver, and the further fact that it was delivered, through no fault of the defendant, at a season of the year when a satisfactory test of the tractor was impracticable, themselves necessarily operated to entitle the defendant to a reasonable time beyond that prescribed in the order, and under conditions more favorable for that purpose than existed at the time of delivery, to put the engine to a proper test.

A case in its facts substantially like this is that of Springfield Engine & Thresher Co. v. Kennedy, 7 Ind. App. 502 , [ 34 N.

Summarizing the conclusions announced in the above cases, whose facts are quite similar to those of the case at bar, they are: 1. That the question of a breach of warranty such as the one involved in this case is, upon conflicting evidence, one for the jury; 2. That where, in such case, there is a requirement in the contract that notice of the failure of the machine to work properly must be given within a specified time after its receipt, such notice is waived by the continued and persistent efforts of the seller’s agents, including the one who made the sale, to make the machine work after the expiration of the time limited; 3. That, under such facts as are present here, a sales agent’s authority extends to all such acts as are properly connected with the sale and delivery of the machine, hence his authority does not stop when the proposed vendee first takes the machine on trial, but continues until the sale should either be completed or the machine returned without any sale being made; 4. That, although the contract of sale stipulates that the purchaser shall give written notice to the seller of any defects in the machinery purchased, and in effect provides that the failure to give such notice shall constitute a waiver of any breach of warranty, if the agent of the seller is present at the trial of the machine, and in this manner has knowledge that the machine is not performing according to warranty, the provision as to notice is waived.

As above stated, the facts of this case bring it well within the doctrines above enunciated. There is, therefore, no ground for the contention of the plaintiff that the acts- of Horstman with reference to the transaction after the execution of the order by defendant had the effect of modifying or altering the terms of said order or of introducing a new term therein.

It is claimed that the ruling allowing in evidence the catalogues and photographs, published by the plaintiff, showing the character and mechanism of the tractor referred to in the written order and which were exhibited to the defendant by

There are other rulings as to evidence admitted against objection by the plaintiff which it is claimed involved error and seriously affected plaintiff’s rights. We will not give these special notice herein. It is sufficient to say that we have carefully considered them and are convinced that they could not have had the effect of damaging the plaintiff’s rights, even if it be true that some were without legal justification.

It is further complained that the court committed serious error in some of the instructions submitted for the jury’s guidance in considering the evidence. The instructions referred to, it is insisted, erroneously stated and assumed: 1. That the plaintiff warranted the engine, whereas, so it is contended, - the warranty is the warranty of the Pioneer Tractor Company, the maker of the engine; 2. That the written warranty could be waived by the plaintiff; 3. That the jury were authorized to consider any evidence tending to show that after difficulties arose in the operation of the engine the agent of plaintiff induced the defendant to make further trial thereof after the time limited by the warranty.

All the above propositions have already been considered and disposed of herein. It may be added, however, referring to the first of the stated objections under this head, that the warranty of the Pioneer Company is, in the very nature of the situation as disclosed by the record, the warranty of the plaintiff. The latter, as the general distributing agent in California of the former, has necessarily assumed as such agent all the burdens and conditions of the warranty, this being shown by the undisputed fact that the contract as to the particular tractor in question is between the plaintiff and the defendant and not between the Pioneer Company and the defendant.

As to the point that the defendant does not plead a waiver and hence the case was tried upon an erroneous theory, the

We have found no reason for disturbing the result arrived at in the court below; and the judgment is accordingly affirmed.

Chipman, P. J., and Burnett, 3"., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 2, 1918.