
    WALTER A. WOOD HARVESTER COMPANY v. ANDREW RAMBERG.
    
    February 4, 1895.
    No. 8991.
    Sale — Evidence of Expectation of Buyer.
    A certain ruling of the trial court, by which defendant was permitted to-testify that when he gave a written order to plaintiffs agent for one of its harvesters and binders, in which order was the usual warranty of the machine, he “expected” to get a machine like one which had been exhibited to him by the agent before he gave the order, held erroneous.
    Same.
    The court charged the jury that the exhibited machine became an integral part of the contract, and the standard by which to test and compare-the machine actually furnished. Held error, and, further, that such charge was not justified by an instruction previously given at the instance of plaintiff’s counsel, or by any evidence in the case.
    Action in the district court for Polk county for the puchase price of one of plaintiff’s harvesters and binders. The material parts of the pleadings are stated in the opinion. A portion of the warranty attached to the order was in these, words: "All our machines are-warranted to be well made, and of good material, and to do good, work when set up and operated as per printed directions.” Other provisions of the warranty are mentioned in the opinion.
    At the trial before Ives, J., with a jury, the court refused to direct the jury to return a verdict for plaintiff for the amount claimed. There was a verdict for defendant. From an order denying its motion for judgment notwithstanding the verdict, and refusing to set aside and vacate the verdict and grant a new trial, plaintiff appealed.
    Reversed.
    
      John L. Townley and A. A. Miller, for appellant.
    
      R. L. Montague, for respondent.
    
      
       Reported in 61 N. W. 1132.
    
   COLLIN'S, J.

Defendant gave to plaintiff — the latter acting through an agent — a written order for one of its harvesters and binders, — B. C., six-foot cut, — for which he agreed to pay $130, to be evidenced by two promissory notes. The machine was delivered to defendant, and, on his refusal to execute and deliver the notes, this action was brought for the agreed purchase price. According to the terms of the order, which was in the language usually found in these very common instruments, the machine was purchased subject to a warranty therein contained, “and no other.” By the terms ■of this warranty, if, upon attempting to start the machine, it should ■not work well, immediate notice was to be given plaintiff; and time ■given within which the defects might be remedied, and the machine put in good Working order. If then it could not be made to •do good work, the machine was to be returned. It was expressly agreed that the warranty was not to be abridged or changed in any manner. At the time the order was given one of plaintiff’s harvesters and binders, of the size and kind ordered, was set up and •on exhibition, and was exhibited to defendant, at the agent’s place ■of business. The. machine delivered to defendant was boxed up or ■crated, for convenience in shipping, and he loaded it into his wagon for transportation to his farm; an expert in plaintiff’s employ going along with him, to set it up, and put it in running order at the farm. After going a few miles, defendant, as he claims, inspected it, without removing it from the boxes or crates, and, insisting that it was an old machine, with rusted, bent, and broken parts, refused to carry it further, or to allow the expert to set it up and attempt to make it work, in compliance with the terms of the warranty. The verdict was for defendant, and, on appeal from an order refusing a new trial, counsel for plaintiff assign as error in the trial several rulings of the court in the admission of evidence, error in its charge,-and also that the verdict was not justified by the evidence.

The complaint set out the giving of the order; that, in accordance therewith, plaintiff duly delivered a machine which fully complied with the required conditions; its acceptance by defendant, and his refusal to execute and deliver the notes. The answer admitted the making of the order, but alleged that it was agreed and understood by the parties that the machine should be new, with the latest improvements, and fit to cut and bind grain in a good and satisfactory manner. It alleged that the machine offered by plaintiff was •old, worn, rusty, of inferior quality, and much less value than that designated and intended by the order; was not fit or in condition-for use as a harvester and binder; and that when defendant saw this he refused to accept it. It will be noticed that nowhere in-the answer was it averred that the sale was by sample, or that the machine was to come up to the standard, or to be as good a machine as the one on exhibition at the agent’s place of business. On the-trial, defendant was allowed to testify that before giving the order a sample machine was shown him, — “a bright, new machine,” which appeared to be in proper condition, and with which he found no' fault. He was then asked, “In giving this order, state whether or not it was intended to be an order for a machine of that kind,” to-which question plaintiff’s counsel objected; and although the court ruled, as it had done before, that no testimony could be introduced! which would vary the terms of the order or contract, the defendant was allowed to answer: “1 expected to get a machine like the-sample binder.” A motion to strike out the answer was overruled, and in connection with testimony tending to show that the machine-delivered had some of its parts broken, bent, and rusty, the court permitted it, as it appeared in the boxes and crates, to be compared' with the so-called “sample machine.” And with much explicitness the jury was charged that the sample machine became an integral part of the order; that if the one delivered failed to come up to — fell short of — the standard, and was not as good as that on-exhibition, defendant was not bound to accept it. It is obvious that, by means of these rulings and charge, the case was transformed from an action on defendant’s order for a machine which should fulfill the terms of the contract of warranty — the case made by the-pleadings — into an action to recover the agreed price of a machine which should not only comply strictly with the conditions of the-warranty, but should also be of the same quality, and as good, as the one on exhibition. Counsel for defendant makes no attempt to-sustain the rulings or the charge, except upon the ground that by its own testimony, and a certain request to charge, which was-given to the jury, plaintiff made the exhibited machine an element of the contract, and the standard by which to compare and judge-the one to be delivered to defendant. When introducing their evidence in chief, counsel for plaintiff asked the agent who took the-order if there -was a machine, of the character referred to, set up-» in Ms place of business at tbe time the order was given. He replied that there was, and that it was shown to defendant before the order was given. We cannot see upon what theory it can be urged that proof by plaintiff of these facts opened the way for testimony as to what defendant expected when he gave the order. Even if it had appeared that the machine exhibited was to be a standard of comparison, — -and it did not, — evidence as to what defendant expected would be inadmissible. He had entered into a contract for the purchase of a certain described harvester and binder, to be well made, of good materials, and warranted to do good work. On the pleadings and on the evidence, as it stood when defendant was asked the question, it was not what he expected to get, but what he ordered, which should have governed the court in its rulings.

Subsequently to the reception of the evidence which we have said was inadmissible, the machine received was compared in various ways with that shown defendant when he gave the order. And there was considerable testimony produced by plaintiff tending to show that the machines were of the same year’s make, of the same lot, or shipment to the agents, and alike in character and pattern, all of which was to meet defendant’s claim that he was to have a machine like that set up in the agent’s place of business. The plaintiff’s .counsel also requested, and the court charged, that if the machine delivered was a good machine, and alike in character and pattern to the one exhibited, defendant was bound to receive it, subject to the conditions as to warranty found in the order. We fail to see why this testimony as to the machines being alike in character and pattern, or the request to charge on which the court acted, should conclude counsel for plaintiff from excepting to that part of the charge subsequently given, in which the jury was told that the machine exhibited to defendant became an integral part of the contract, and that defendant was not bound to accept a machine which fell short of that standard. After the rulings whereby, against plaintiff’s objections, the sample machine was made the test by which the contract was to be determined, and not the contract itself, plaintiff had the right to meet defendant and to endeavor to defeat him on his own theory of the case. Plaintiff’s counsel were not obliged to rely upon the fact that the contract had been complied with, as to the quality and character of the machine, but could introduce testimony, and could obtain instructions to the jury, in line wdth the views of the court and the defendant as to the issues. But, were this not true, the court went much further in its charge than would have been justified by plaintiff’s request, or by any evidence introduced by either party. It is evident that, by the instructions which made the exhibited machine an integral part of the contract, — the standard by which to compare and test the one ordered, — the jury were led into the error of supposing that not only should the machines be alike in character and pattern, but also in details of finish, in appearance, and freedom from stains and rust. Even if the order could be ignored, and the machine on exhibition dragged into the contract entered into by the parties, there was no testimony tending to show that the sale was by sample. To constitute a sale by sample, so as to subject the seller to liability on an implied warranty, even as to quality, it must be made to appear that the parties contracted solely with reference to the sample or article exhibited, and that it was mutually understood they were dealing with the sample with the understanding that the machine ordered should be like it. Day v. Raguet, 14 Minn. 203 (273). The evidence here came nowhere near what the rule requires.

Order reversed.  