Page:North Dakota Reports (vol. 3).pdf/455



Written Order for Machinery—Coatruction Contract for Sale—Alteration by Agent.

Plaintiff, a corporation, was engaged in the manufacture of farm machinery at Columbus, Ind., and W. & R. were plaintiff's agents for the sale of machinery at Lisbon, D. T. The defendants negotiated with plaintiff, through said agents, for the purchase of a certain straw stacker, and signed and delivered to such agents a written order directing that such straw stacker be forwarded from plaintiff's place of business, and delivered to the defendants, at 2 time stated in the order, at Lisbon, D.T. The terms of the proposed purchase, including the price and terms of payment, were embraced in the order, with other stipulations, including a warranty of the machine, coupled with a right to rescind, and return the machine, etc. Pursuant to such order, and in due time, plaintiff forwarded the straw stacker, and delivered it to the defendants at Lisbon. In an action for the purchase price, defendants denied the purchase, and set up an alleged oral agreement with plaintiff, through said agents, whereby the defendants took possession of the straw stacker on trial only, but did not purchase the same. The trial court instructed the jury as follows: “When the machine came, and before Messrs. Maddox & Corrigan took the machine, they had the power or the option at the time to Say to these plaintiffs: ‘We will not take the machine on the terms of the written order. We have concluded not to take the machine on those terms.’ They had a right to rectify the terms of that purchase. They had a right to refuse to take the machine at all." Held, that such instruction was error. Whether the order was or was not a contract of sale, or whether or not the title would pass after the delivery of the order and its acceptance, but before the defendants had received the machine, is not material in such a case. In any view of the transaction, the order was not a nullity. After the plaintiff, strictly pursuant to the requirements of the order, had accepted the order, forwarded the machine, and tendered it to the defendants at Lisbon, it was incumbent upon the defendants to receive and settle for the machine in accordance with the stipulations contained in the order. Defendants could not, after a tender, arbitrarily, and without cause, refuse to receive the machine under the terms of the order, without violating their agreement, and being liable in damages therefor.

Signing Order—Knowledge of its Contents Presumed.

The order in question embodied the following stipulation: "The stacker is hereby purchased and sold subject to the following warranty and agreement, and no one has authority to add to or abridge or change it in any manner.” Held, that defendants, having signed the order embracing such stipulation, are presumed to be aware of this feature of the order, and are bound to know it and observe its requirements. The stipulation was lawful, and one which the parties had a right to make, and, being made, the defendants, while it was in