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claiming as riparian owners as heretofore record that Nodine had theretofore assigned stated. In addition to the judgment lien of the same interest in the lawsuit to a lawyer the bank the mortgages heretofore referred for the same purpose he assigned to Connell, to aggregated, with interest, about $13,000, and without other consideration than that all prior to the judgment lien. Part of the of a promise to prosecute the suit, we think lands were meadow lands, but floods during the contention of Comell, supported, as it is, the three springs preceding the sale bad by the evidence of a disinterested witness, greatly injured crops, and much of the land the more reasonable that the quitclaim deed was foul with fox tail and mustard. Con- was given for a consideration and for the sidering these facts, and the further fact purpose claimed by him for the bank, and that the lands bought by Brewster and the that the assignment of the interest in the investment company were sold some time lawsuit was for the purpose of having it later for scarcely more than the purchase prosecuted by him, especially does this apprice, and that, too, after the dispute as to pear reasonable in view of the fact that, so riparian claims had been settled in favor of far as his bank and Marshall were conthe lands, we are forced to conclude as in the cerned, a motion to strike out parts of the other sales that the price was not inadequate. complaint in the suit had been allowed and

The foregoing conclusions call for an af- they were virtually out of the case. Such befirmance of all that part of the decree ap- ing the case, the deed should stand, and, the pealed from by the plaintiffs.

plaintiffs having thereby parted with whatThe remaining questions relate to the ever interest they might then have had in quitclaim deed made by plaintiffs to defend the land, they could not now question the ant Connell January 3, 1897, and by Rich- deeds made by Richmond and wife, whose mond and wife to Marshall and to Connell interests had been sold under the executions. after the sale to Marshall. The record shows As heretofore stated, the decree against that after the sale to Marshall had been Starr was entered upon an amended comconfirmed by the court and the sheriff's deeds | plaint not served upon him, and under secissued to him in November, 1896, and he had tiön 100, B. & C. Comp. and Goodale v. Cofconveyed to the bank, or J. C. Ainsworth as fee, 24 Or. 350, 33 Pac. 990, this was error. its representative, the bank was anxious to It follows that the decree must be modified get its money out of the lands bought, but as to the decree against Starr and the decould make no disposition of them without

fendants Marshall, Connell, and the Ainsfirst procuring the inchoate right of dower

wortli Bank, and a decree entered here disof plaintiff's wife, who had not been a de- missing the suit as to them, and affirming fendant in the judgment under which it the decree in all other respects and awardhad sold and purchased the lands through ing costs to the defendants. Marshall, its cashier, or barring such right by foreclosure of the mortgages against the

(12 Idaho, 624) lands. Defendant Connell was sent to nego

HARRISON et al. v. RUSSELL & CO. tiate for her right, and after considerable

(Supreme Court of Idaho. Nov. 19, 1906.) delay a quitclaim deed was made to him by plaintiffs of all their lands that had been

1. SALE — WARRANTY OF PROPERTY SOLD

TIME FOR TESTING MACHINERY-YorICE OF sold, and at the same time they assigned to DEFECTS-1AVER. hiin their interest in the suit then pending Where the contract of sale of a threshing against the trustees and other defendants

machine contains a warranty that is limited and

conditioned by the following provision, "Conheretofore referred to, he at the time paying tinued possession or use of machinery for six Nodine $1,000, which he claims was for the days shall be conclusive evidence that the wardeed, but plaintiff claims it was for the

ranty is fulfilled to the full satisfaction of the assignment of their interest in the suit. An

undersigned who agree thereafter to make no

further daim on Russell & Co. under waragreement was also signed by ('onnell and ranty,'

," the “possession" therein mentioned is plaintiffs son that one-half of the results of held to mean a possession coupled with a posthe suit should go to the son, and this plain

sibility or opportunity of using or testing the tiff testifies was for the benefit of plaintiffs,

property for the uses and purposes to which it

is to be applied. so that in effect the assignment was only (Ed. Yote.-For cases in point, see Cent. Dig. for one-half of the results of the suit. The vol. 13, Sales, $ 791.] testimony of Connell and two other witnesses 2. SAME-COXTRACT-WAIVER OF PROVISIONS. who were present, one of whom was wholly

A provision in a contract, that "no promises

whether of agent, employé, or of attorney, in clisinterested, is to the effect that the deel

respect to the payments, and security, or the was procureil to secure the inchoate dlower working of the machinery named, will be coninterests of Mrs. Nodine and enable his bank sidered binding unless made in writing, ratified

by the home or branch office," does not prevent to get its money out of the Noiline lands,

the company's agent waiving written notice while plaintiff's claim that the deed was an by going to the place where the machinery is after consideration to the assignment of being operated and taking charge of the matheir interests in the suit and to assist Con

chinery and working on it with a view to put

ting it in a condition so that it will comply nell in prosecuting the suit, but both deed

with the warranty. and assignment were signed at the same [Ed. Note.-For cases in point, see Cent. Dig. time. In view of the fact disclosed by the vol. 43, Sales, &$ 806 810.]

3. SAME-NOTICE OF DEFECTS.

ed, and no further claim be made on Russell The purpose of notice to the vendor of

& Co. Continued possession or use of the defects in the machinery under a contract of

machinery for six (6) days shall be conwarranty such as in this case is to enable a vendor to send its agent or employé to the clusive evidence that the warranty is fulproperty and put it in running order anil reinoily filled to the full satisfaction of the underdefects, and when that purpose has once been

signed, who agree thereafter to make no serverl, and the agent or employé has actually yone and taken charge of the property and

further claim on Russell & Co. under warundertaken to put it in running order, the pur- ranty." pose of notice is served, and it becomes im- The Ilarrisons received the property from material whether any notice has been given at

defendant's warehouse at Palouse City on all. Ed. Note.--For cases in point, see Cont. Dig.

the 6th day of August and removed it thence vol. 43, Sales, SS 800-810.]

to their premises, and on the 11th day of (Syllabus by the Court.)

August (ommenced to use and operate the

machine. They do not claim to have given Appeal from District Court, Latah County;

the defendant or its local agent any notice Edgar C. Steele. Judge.

as to detects in the property within six Action by J. T. Harrison and others

days after receiving the property from their against Russell & Co. Judgment for defend

Warehouse, but they do claim to have given ant, and plaintiffs appeal. Reversed and re

the notices required in the warranty within manded.

six days after commencing to use the malS. S. Denning and A. H. Oversmith, for chine. Is soon as the plaintiffs admitted to appellants. Forney & Moore, for respondent.

the trial court that no written notice hall

been given within six days after receiving AILSHIE, J. The appellants commenced the property. the judge informed their this action to have three certain promissory counsel that they had by that act waived the notes previously executed by them and deliver- benefit of the warranty, and that they could ed to the respondent surrendered and canceled, in no event hold the defendant under the and for the recovery of the sum of $250 pre- warranty. Plaintiffs' counsel thereupon ofviously paid on the notes, and to recover the fered to prove that written notice had been further sum of $106.30 for work and labor sent to the company at Massillon, Ohio, 011 performed and supplies furnished respondent 1 the fifth day after commencing to use the milin connection with the transaction for which chine, and that they also gave notice to the the notes were given. The respondent, de- local agent: that the local agent, subsequent fendant in the lower court, answered, deny- to the receipt of such notice, sent experts to ing the allegations of plaintiffs' alleged cause the plaintiffs' premises, and also (ame in perof action, and alleged that there was due son, and undertook to put the machine in such and owing on the three several notes the order as to make it run; that plaintiffs talked sum of $1,012.82, and prayed judgment for with the local agent over the telephone and that sum, together with $100 attorney fees, told him that the machine would not run, and interest, and costs of the action. It appears that they were going to return it, and the that on the 7th day of August, 19900, the ap- agent requested them not to return it, and pellants executed and delivered to the re- also requested them not to give any written spondent their three certain promissory notice, that they did not want tbe notice. notes for the purchase price of a thresher and that they would make the machine run outfit which they had purchased on the day or give them another machine, and that if previous from the defendant company. The they failed to furnish them another machine company gave plaintiffs a contract warrant- that would run he would give them back ing the property sold, which warranty is their notes. It seems from the evidence and ils follows: "That the above articles are to proffered evidence that at least five or six be of the Russell & Co.'s manufacture, and different agents and expert employés of the warranted by them to be of good material, defendant company went from time to time well made, and, with proper management, to the plaintiffs' premises and examined and capable of doing as good work as similar worked on this machinery and endeavored to articles of other manufacturers. If said put it in running order, and from time to machinery, or any part thereof, shall fail to time requested the plaintiffs to retain the fill this warranty, written notice shall be property and assured them that they would given Russell & Co., Massillon, Ohio, an to make it run or furnish another machine: the party through whom the machinery was that after a time they did take this machine purchased, stating wherein it fails to fill the back and furnish them another machine, warranty and time, opportunity, and friendly which apparently was no better. The transacassistance given to reach the machinery and tion ran along in this manner (according to remedy the defects. If the defective machin- the statements of plaintiffs' counsel and the ery cannot then be made to fill the warran- offers that he made as to proofs) until the ty, it shall be returned by the undersigned season of 1902, when he was requested by the to the place where received, and another agent to go to Endicott, Wash., and get anfurnished on the same terms of warranty, or other machine they had there alled the money and notes to the amount represented "Buck.” Plaintiffs went to Endicott and got by the defective machinery shall be return- the machine and returned the second ma

87 P.-50

chine they had received from the agent to mind, however, that the language there used his warehouse and executed new notes for is directly referable to the particular facts the Buck machine. The plaintiffs say that of the case then under discussion and should the agent promised them at that time that be read and considered in the light of these he would have the old notes that were given facts. Our careful examination of that case for the first machine returned to him, and satisfies us that the principle involved and would cancel them and wipe out the old con- the points there determined are not decisive tract entirely. The district court refused to of the case now under consideration. admit this evidence offered by the plaintiffs, The warranty provides that "continued and thereupon the defendant proved the exe. possession or use of the machinery for six cution and delivery of the notes and the bal- (6) days shall be conclusive evidence that ance due thereon, after which the court per- the warranty is fulfilled to the full satisemptorily instructed the jury to compute the faction of the undersigned," etc. This lanamount due with legal interest and bring in guage should be read and construed in the a verdict accordingly in favor of the defend- light of the purposes for which it was used ant. A verdict was returned in favor of the and the circumstances under which it was defendant for the sum of $1,107.75. Plain- employed. Now, it certainly could not have tiffs moved for a new trial, which was de- been the fair intention of either of the parnied, and they thereupon appealed from the ties that the purchasers should for the purorder and judgment.

poses of this warranty be considered in The appellants complain of the action of "possession" of the property until such time the trial court in refusing to admit evidence as they might have the property at a place tending to show that they had no opportu- where it would be possible to use it for nity to use the machine for some days after the purpose of threshing grain. The comthey received it at the warehouse, and that pany and its agents, when selling this propthe "possession" mentioned in the warranty erty to plaintiffs, undoubtedly learned their was intended to be one coupled with a pos- place of residence and the community in sibility or opportunity of use. They also which they expected to work and operate claim that the court should have allowed the property. It certainly could not be said them to show that the defendant, by the ac. that the six-day period began to run at the tion and conduct of its agents, waived the time of the receipt of the machinery from the literal and formal compliance with the re- warehouse, if, as a matter of fact, the purquirement for giving them notice, and that chasers would have had to transport the all of the plaintiffs' evidence along those machinery 75 or 100 miles across a mountlines tending to show the waiver and the ainous region in order to reach the communiagreements from time to time to make the ty where they lived and expected to do threshproperty good if the plaintiffs would retain ing. In that case we do not think the conit and try to operate it, and also the agree tracting parties would have understood or ment for exchange of the machine for the intended that the “possession" referred to last machine secured, was admissible and in the warranty should commence until at should have been allowed. The respondent least a possibility or opportunity of using contends that the case of Murphy v. Russell the property should arise. While there are & Co., 8 Idaho, 133, 67 Pac. 421, fully justi- vast grain producing prairies throughout fies the action and ruling of the trial court this state, it is frequently necessary to travand is decisive of this case. In that case the erse extensive mountain regions to reach purchasers had held the machine from July many of these agricultural communities, 14th to July 31st. They had used it a part and we must treat the contracts of business of the time during that period, and during men as having been made in the light of the meanwhile no complaint had been made natural conditions and with a view of beto the company or its agent, and they do not coming valid and operative and of mutual appear to have served any written notice of benefit to each of the contracting parties. defects, as required by the contract. On the A construction that would hold the "possesother hand, the company never took charge sion" of the machinery in this warranty to of the property or sent any agent to repair commence, in every case, at the time the mathe property or put it in running order; chinery was received at the depot or warenor did they do any act or thing which in house, would convert the contract of warany way tended to show a waiver of the ranty into simply a waiver of warranty and notice. It will at once be seen that the facts give the purchaser no benefit whatever. Eviof this case are widely different from the dence, therefore, tending to prove a state of facts of the case at bar. It is true that the facts similar to or within the line of that warranty that was there considered was suggested above, is clearly admissible and identical with the warranty in this case.

should be allowed in such a case. It is also true that there are some things Respondent contends that the agent could said in that opinion which, if taken alone not waive any condition of the contract or and independent of the facts in the case, warranty for or on behalf of the company, would appear to support the position taken and in support of that argument calls our atby respondent here. It should be borne in tention to the following clause in the contract: “As the condition hereof, it is fully , warehouse, and, if the plaintiff's furnish understood and agreed: That this order is prima facie evidence tending to establish given subject to the acceptance of Russell these facts, then they would be entitled to & Co., and that no promises, whether of show the further transactions between them agent, of employé or of attorney, in respect and the defendant's agents, and their promito the payments, and security, or the working ses and agreements with reference to the reof the machinery named, will be considered pairs and work upon the machinery in order binding unless made in writing, ratified by to make it run, and the exchange of mathe home or branch office." Now, it can chinery and the like in connection therescarcely be said that a waiver of notice or with. Counsel for defendant objected to evipromise to make continued effort to put the dence of the acts and statements of the machinery in such condition that it would agents on the ground that plaintiffs had do the work for which it was sold, or a not proven the authority of the agents to promise that in case they were not success

bind the company.

Whatever the original ful they would substitute a new machine, authority of the agent may have been, it would fall within the prohibition of the fore- would seem clear that his acts were ratified going clause of the contract. The only pur- and confirmed by the company subsequently pose of notice is to enable the vendor to ex- furnishing the purchasers another machine amine the machinery and remedy any de- through the agency and medium of this fects and put it in running order. When that salesman. They appear to have taken the purpose has been served, and the company's first machine back and delivered a second agents have taken charge of and examined machine under the original contract, and this and worked on the machinery, it becomes case arises over the delivery of the third or immaterial whether any notice at all has Buck machine; plaintiffs claiming that it was been given. Mass. Loan & Trust · Co. v. furnished in place of the second and to make Welch Minn.) 49 N. W. 740; Davis v. Robin- good the original contract. It is also argued son (Iowa) 25 N. W. 282; Nichols & Shepard by respondent that plaintiffs are estopped Co. v. Wiedemann (Minn.) 75 N. W. 208; on the grounds that they continued to make Aultman-Taylor Co. v. Frazier (Kan. App.) payments on the notes given for the purchase 47 Pac. 156; Baker v. Nichols & Shepard Co. price of the machinery. When all the evi(Okl.) 65 Pac. 100. If, on the other hand, dence in the case is heard, this objection it should be contended that this clause was may or may not be well taken.

If payan attempt to restrict and limit the future ments were made from time to time under power and authority of the corporation to the belief and with the promise and agreemodify its contract or waive any privilege ment that the machinery would be put in given it under the contract through its duly-running order and made to do the work for constituted agents and attorneys, then and which it was purchased, and such agreement in that case it would come in conflict with was in fact never complied with, and no the almost uniform current of authority further waiver is shown by the purchasers, which holds such stipulations invalid and of it would not amount to an estoppel against no binding force or effect. Baker v. Nichols them; otherwise it might do so. Evidence & Shepard Co. (Okl.) 65 Pac. 100; Nichols of their dealings will determine that ques& Shepard Co. v. Wiedemann (Minn.) 75 tion. N. W. 208; Trust Co. v. Welch, 49 N. W'. The judgment is reversed, and the cause 740, 47 Minn. 183; Lamberton v. Insurance remanded, with directions to the trial court Co., 39 N. W. 76, 39 Minn, 129, 1 L. R. A. to grant a new trial and admit in evidence 22; Knickerbocker Insurance Co. v. Nor- the plaintiffs' further offer tending to estabton, 96 U. S. 234, 24 L. Ed. 689.

lish the facts above suggested. Costs awardWe have no way of knowing from this rec- ed in favor of appellants. ord what the appellants, the purchasers of this machinery, can in fact prove with refer- STOCKSLAGER, C. J., and SULLIVAN, J., ence to these several transactions; but it concur. is to be presumed for our present purposes that they had evidence to establish, or at

(12 Idaho, 618) least tending to establish, some of the facts

ANDRINO v. YATES. which their counsel offered to prove in the

(Supreme Court of Idaho. Nov. 17, 1906.) trial court, and for that reason a new trial inust be granted in order to give them an

1. HABEAS CORPUS-GUARDIANSHIP OF MINOR

CHILD-RIGHIT OF PARENT-RELINQUISHMENT opportunity of submitting these facts to the

OF-WELFARE OF CHILD-EXAMINATION OF jury. In the view we take of the case, CHILD. plaintiffs should be allowed to submit to the The right to the guardianship of a minor jury any competent evidence they may have

cannot be tried upon habeas corpus. tending to establish the fact that notice was

[Ed. Note.--For cases in point, see Cent. Dig.

vol. 25, Habeas Corpus, $ 14.] waived, and also the fact, if it exists, that it was impossible for them to use or test

2. SAME-CUSTODY OF MINOR. the machinery for any given length of time

This proceeding was not for the purpose

of setting the child free, but to determine whethafter they received it at the defendant's er the plaintiff was entitled to its custody.

3. SAME-DISCRETION OF COURT.

Jackson county, state of Oregon. The child The jurisdiction of the question of the cus- remained there until about the month of Notody of a child under a writ of habeas corpus is of an equitable nature and courts have large

vember, 1897, about two years, when it was discretion in the matter.

delivered by its father to the daughter of [Ed. Note.--For cases in point, see Cent. Dig.

Mrs. Yates, to be delivered to the defendant vol. 22, IIabeas ('orpus, $ 81.]

in this proceeding, who was the sister of 4. GUARDIAN AND WARD-RIGIITS OF PARENT. the said Stewart, where the child remained Under the provisions of section 5774, Rev.

until the present time. The father died about St. 1887, the parent is entitled to the guardian

a year after the child was placed in the ship of his minor child when he is competent to transact his own business, and not otherwise

hands of Mrs. Yates, It appears from the unsuitable as guardian.

record that the petitioner, after leaving the TEd. Note.-For cases in point, see Cent. Dig. child with the aged couple referred to, went vol. 25, Guardian and Ward, § 25.]

to California, and remained at different pla5. HABEAS CORPUS-ABANDONMENT OF RIGHT.

ces in that state for some time; she thereThe legal right to the custody of a minor

after went to Nevada, and was there married may be abandoned or forfeited by the acts or conduct of the parent, and in such case he is to a butcher. It also appears that her marpuitably stopped from asserting such legal ried life with the butcher was not congenial, right.

and she left him and returned to California. [Ed. Note:-For cases in point, see Cent. Dig.

Afterward, she left California and went to vol. 2.7. Habeas Corpus, $ 81.)

Tombstone, Ariz., where, about a year prior 6. SAVE-DEST INTERESTS OF MINOR. Where the legal right of the parent is not

to this time, she married her present lusclear, the best interest of the child will govern band, Barney Andrino. It appears that Anthe decision of the court.

drino is engaged in the saloon business, and [Ed. Yotr. For cases in point, sce Cent. Dig. has a home in said town and is worth about vol. 27, Ilabeas Corpus, $ 84.]

$7,000; that he has a pleasant home in that 7. SAME-VIDENCE.

place. It also appears that from the time When it appears that a child has resided with its aunt from the time it was about 212

the child was left with the aged couple in years old until it is nearly 12 years of age with- Oregon, the petitioner wrote to them very out having seen its mother, and that conditions seldon, and sent them about $10 to pay for are such and made so by the acts of the p:irent that the care and custody of the child cannot

the care, clothing, and nurture of the child ; be changed without endangering the happiness

that the child was not quite three years old and welfare of the child, the purent has become when it was placed in the care of Mrs. Yates in the language of section 1771. Rev. Nt. 1887,

by its father ; that Mrs. Yates has taken care "unsuitable" for possession of the child.

of it from that time to this ; that during those S. SAME-WELFARE OF CHILD).

In such cases the welfure of the child is eight or nine years six or seven letters were the main consideration for the court.

received from the petitioner by the daughSAME-PROCEDURE.

ter of Mrs. Yates, in which she inquired about In cases of doubt and difficulty the court the child and said that she wanted to keep mar examine the minor when it is of susficient

track of it, but did not want to take it from age and liscretion, as to its wishes and desires in the matter: not that its wishes must con- Mrs. Yates. During that time the petitioner trol in the matter but that the court might more did not send any money, clothing, or presents wisely arrive at a just conclusion in the curse.

of any kind to the child. It further appears (Syllabus by the Court.)

that the petitioner has no means of her own Application by Julia F. Andrino for writ

with which to pay for the care and schooling of habeas corpus against Sarah E. Yates to of the child. It also appears that her husdetermine the right to the custody of a minor

band, Andrino, would be pleased to have his (hild. Application denied, and denied, and child re

wife take the child, and that he would furmanded.

nish the me:ins for its support, clothing, and

schooling. The child is now nearly 12 years Fogg, Nugent & Casady, for plaintiff. L.

of age, has become very much attached to its Vineyard and E. M. Griffith, for defendant.

aunt, Mrs. Yates; that it does not wish to go

with its mother, but desires to remain with SULLIVAN, J. This is an application for its aunt. It also appears from the record a writ of habeas corpus by the mother to ob- that the probate court of Idaho county istain possesion of her daughter now about 12 sued letters of guardianship, whereby Mrs. years of age. The facts of the case are sub- Yates was appointed guardian of said child. stantially as follows: It appears that the pe- However, the application for letters of guardtitioner intermarried with one Thomas Stew- ianship was not made until about the month art in the state of Oregon in the year 1893 of July, 1906, and after Mrs. Yates was conor 1894; that after said marriage they lived vinced that the petitioner was going to make near Jacksonville in said state; that on the an effort to get possession of the child. Some 2.3th day of February, 1897, the child, Pheobe, technical questions have been raised in this M. Stewart. was born; that the married life case with regard to collateral attacks on orof the petitioner and her said husband was ders or judgments of the probate court in not congenial, and when the child was about guardianship matters, but, as we view it, it is eight months old the petitioner left her said not necessary for us to pass upon those queshusband taking the child with her, and left tions. It is contended by counsel for plaintiff It with an aged couple residing at Medford, | under the provisions of section 5774, Rev. St.

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