Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1911-05-31
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SUPREME COURT.

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Edward Westby, plaintiff and respon
dent, vs.. J. I. Case Threshing Ma
chine Company, defendant and ap
pellant.
Plaintiff signed a written order fol
the purchase of threshing machine
of defendant. On it's arrival. plain
tiff could not give security for its
purchase price in compliance with the
order and delivery was not made
Defendants agent, for purposes of de
livery and collection, then sold plain
tiff the machine under an oral con
tract at reduction for cash, the ma
chine to be tried and If not satisfac
tory, returned, and pending trial the
cash price was deposited with such
agent. The machinery proved worth
less. The agent transmitted the
money to the defendant, who retains
it. Plaintiff resanded the oral con
tract of sale and recovered judgment
for the amount paid including freight
a. HELD: The delivery under
the oral contract was not de-
livery of such machine under the writ
ten order, Notwithstanding that such
order by it's terms forbade the agent
substituting the contract Of sale there
for and that the machine was deliv-
cred under new and Independent oral
contract of sale.
CD That under the oral contract
plaintiff had the right to test such ma
chinery by trial and its acceptance
for such purposes was not an accept
ance under the written order, even
though the company's agent had no
authority to make an oral contract
of sale or permit such trial before &C.
ceptance of the machinery.
80 Where the machinery is de-
livered under new and independent
oral contract of sale made by an agent
oral contract of sale under which the
company receives purchase price on
such sale made by an agent in ex-
cess of the agents authority. the COM
pany as principal, must disaffirm the
unauthorized sale or they will be held
to ratify the agents acts and such sale
under the oral contract.
a. Where after RECESSION of such
an oral contract action is brought by
the purchaser to recover the purchase
price, written executory contract be-
tween the parties made prior to the
executed oral contract. but under
which written contract no delivery was
ever had, the written warranties and
conditions as such are not parts of
the oral contract itself; the executed
oral contract entirely superceding in
such particulars as we'll as all others
the prior written executory contract.
Therefore, the written contract and
the warranties therein contained and
tie conditions provided under which 1t
might be rescinded, including mannaer
of RECESSION, are not parts OF the oral
contract and can constitute no defense
to an action for the purchase price
based on RECESSION of the oral contract
of sale when delivery was had under
such oral contract.
60 Plaintiffs complaint was pre-
pared to permit proof of either writ
ten contract of sale with RECESSION as
provided for in such written contract.
or to permit proof Of an oral con.
tract of sale and recision thereof.
Where no motion is made in advance
of or on trial to compel plaintiff to
elect under which contract of sale he
will submit proof, plaintiff has not the
right of choice and may, as in this
case. rely upon and prove such oral
contract. The fact that plaintiff gave
notice of RECESSION in the same manner
provided in the written contract, and
plead such RECESSION, does not Of itself
estop plaintiff from relying on this
oral contract where such notice Is not
inconsistent with a RECESSION of such
oral contract.
(Syllabus by the court)
Appeal from the district court of
Benson county, Cowan, Judge.
Affirmed.
Opinion of Goss, Judge, Morgan,
circuit Judge, not participating.
H. r. Turner, attorney for the de-
PENDANT and appellant.
I. c. Davies and Butte q Sinness,
attorneys for plaintiff and respondent.
Fred j. Cotton, plaintiff and respon-
dent. vs.. J. E. Horton and Henry w.
Stevens, defendants and appellants.
1. Under chapter 80, Session Laws
1909, publication Of a notice Of real
estate mortgage foreclosure sale upon
any day Of the week was sufficient
for that calendar week
which commenced the previous Sun
day morning and a similar publication |
upon six successive weeks next prior |
to the sale was sufficient notice of the |
sale. provided the several publications |
had been by at least five days apart.
The case Of Finlayson '. Peterson, S N. |
D. 587, 81 N. w. 953, is construction |
Of the law as It existed prior to March |
3, 1889, the case at bar CONSTITUTES the
law in force from March 8, 1889 to
I, 1896, and the case of Nc.
Donald v. Nordyke Co., 9 ". d. 2S9,
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