Baker v. Nichols & Shepard Co.

1901 OK 4, 65 P. 100, 10 Okla. 685, 1901 Okla. LEXIS 58

• Court: Supreme Court of Oklahoma
• Decided: February 8, 1901
• Status: Published

Opinion

Opinion of the court by

McAtbe, J.:

The action of the probate court was erroneous. Evidence was offered to sustain every essential point which entitled the defendant to a judgment, and the court should have permitted the case to go to the jury to be determined, and should not have directed the jury to return a verdict for the plaintiff.

Where evidence has been given supporting all the points necessarily involved in the conclusion to which a jury might reasonably come upon controverted questions of fact, it is not in the province of the trial judge to take a case from the jury, and he ought not to undertake to deprive the jury of its right to find a verdict upon the evidence which has been adduced to it. The sole question for the judge to determine in such a case is whether, admitting the truth of all the evidence-which has been given in favor of the party against whom the motion is made, together with such conclusions as could be reasonably drawn from it, there was enough of said evidence as reasonably tended to support the verdict which the jury might render. And where the direction of a verdict is asked upon conflicting evidence, all facts and inferences therefrom in conflict with the evidence against which the motion is made, should be disregarded. (6th Ency. of PL & Pr. 393.)

But when the judge in this case undertook to set aside the verdict of the jury, he undertook to pass upon the credibility of the evidence, which is not, under our system, within the province of the judge. We have read the testimony, and think that the direction was against the preponderance of evidence.

After the plaintiff company was notified that the machine was not working satisfactorily, their agents appeared upon the scene and took charge of the machine, and at' different times during the period of twenty-seven days, during which Baker was trying to use it took possession of it, took it partly to pieces, and tried to make it an effective and useful machine, but failed to do so.

Even if it had appeared to the jury that the written notice required by the warranty had not been strictly complied with, they should yet have found for the defendant, if they were'satisfied upon the evidence, as it was adduced to them, that the plaintiff company had thus taken charge of the machine for the purpose of repairing and trying to put it in order. These acts dispensed with that provision of the warranty which requires written notice of the failure of the machine to work in a satisfactory manner.

It is provided in the warranty, that:

“No general or special agent or local dealer is authorized to make any change in this warranty. Workmen or experts are not agents, and have no authority to bind the company by any contract or statement.”

Such provisions as this are uniformly considered to be limitations upon the capacity of the corporation for further action which it cannot impose upon itself, and that such provisions cannot operate to- prevent waiver by the corporation of the conditions of the contract which would, except for the prohibition, legally result from the acts of its authorized agents with reference to the machinery. (Nichols & Shepard Co. v. Wiedmann, 75 N. W. 208; Trust Co. v. Welch, 47 Minn. 183, 49 N. W. 740; Lamberton v. Ins. Co., 39 Minn. 129, 39 N. W. 76; Flatt v. D. M. Osborne & Co., [Minn.] 22 N. W. 440.)

. In response to the notification from the defendant the plaintiff took charge of its machine by these various agents and workmen, and attempted to put it iu order. The attempt was subsequently and frequently repeated by persons representing the plaintiff from time to time. If the conditions of the printed warranty were binding upon the plaintiff, they were, at any rate, waived and thus fulfilled.

In Davis v. Wood, (Iowa) 25 N. W. 282, the circuit court had instructed the jury that the machine company might waive these provisions of the contract which were intended for its benefit, and that if, in compliance with defendant’s request, they sent an agent to fix the machine, they thereby dispensed with that provision of the contract which requires written notice of the failure of the machine to work in a satisfactory manner to be given them; and the supreme court of Iowa said upon it, that:

“Having acted upon the notice which was given them, they cannot now be permitted to assert that it was not as full or formal a notice as, under the contract, they were entitled to receive.”

In Aultman-Taylor Co. v. Frasier et al., 47 Pac. Rep. 157, (Court of Appeals of Kansas), there was a conflict of testimony concerning the notice given to the company, but it was “beyond dispute that the general manager of the company for the state of Kansas received notice (how or from whom it is not ■shown), and that he sent an expert to look after this machine. But upon this proposition seems to hinge all of the company’s contention ‘that they did not receive notice as required by the contract, that is, by registered letter sent to the company at Mansfield, Ohio.’ ”

The court said, “We think this notice to the general manager would be sufficient notice under the warranty, striking out the conflicting testimony upon the subject of written notice to the house.” (Machine Co. v. Mann, 42 Kans. 372, 22 Pac. 417.)

It was held in a similar case that where the agent of the company appeared and took charge of tne repairs, after the machine was set up and the company notified that it was defective, it, “of course, dispensed with the necessity of any written notice io the company to send an expert. And it is apparent that the conditions did not subsequently exist under which, by the terms of the contract, there was a trial and retention of the machine by Welch, such as to work a forfeiture of the warranty.” (Mass. Loan & Trust Co. v. Welch, [Minn.] 49 N. W. 740.)

But we see no reason why the defense in this case should be put upon narrow grounds. The warranty in this case was mutual. It was signed by the defendant, but it was accepted by the plaintiff, and it was, binding upon both, and it contained the warranty and agreement on behalf of the plaintiff, that the “said machinery is well made, of good materials, and, with proper management capable of doing well the work for which the machines respectively are made and sold,” as well as the condition, “that, if in five days from its first use, it shall fail to fill this warranty, written notice shall be immediately given by the purchaser to Nichols & Shepard company, at Battle Creek, Michigan, stating particularly what parts and wherein it fails to fill the warranty.”

The contract was mutual. The plaintiff was bound to remedy the defect, and, if possible, to make the machinery a practical success. It failed to do so. A number of experts, working in behalf of the company, through a series of days, extending over almost the whole of a month, endeavored by repairing to get the machine into some kind of working shape. ’The evidence shows that their efforts were a failure, and the defendant ought to have been released from any liability. (Aultman-Taylor Co. v. Frazier, 47 Pac. 157.)

The cause is remanded, with direction to the probate court of Blaine county to revoke its judgment, and with direction for new trial in accordance with the views herein expressed.

All of the Justices concurring.