Advance-Rumely Thresher Co. v. Wharton

• Decision Date: 09 December 1930
• Docket Number: 40366
• Citation: 233 N.W. 673,211 Iowa 264
• Parties: ADVANCE-RUMELY THRESHER COMPANY, Appellant, v. GLENN WHARTON, Appellee
• Court: Iowa Supreme Court

233 N.W. 673

211 Iowa 264

ADVANCE-RUMELY THRESHER COMPANY, Appellant, v. GLENN WHARTON, Appellee

No. 40366

Supreme Court of Iowa, Des Moines

December 9, 1930

Appeal from Des Moines Municipal Court.--J. E. MERSHON, Judge.

Action on a promissory note given in payment of the purchase price of an "Advance-Rumely Combine Harvester," which had been sold by the plaintiff to the defendant on a written contract, containing a warranty. The defendant pleaded rescission of the contract, because of fraud and breach of warranty, and asked judgment for $ 301, the amount previously paid on the purchase price. The defendant, as a counterclaim pleaded breach of warranty and resultant damage in the sum of $ 500. Plaintiff, as a waiver or loss of the right of rescission, pleaded, as inconsistent with said right, the use of said machine by the defendant after asserting the right of rescission, and that the contract provides that rescission is the exclusive remedy for the defendant as to any rights arising under the contract. Trial to the court and a jury. Verdict and judgment thereon for defendant in the sum of $ 801 and costs. The plaintiff appeals.

Reversed.

Strock Sloan & Herrick, for appellant.

R. N Lynch, Kelly & Laughlin, and Hasselquist & Chew for appellee.

WAGNER, J. MORLING, C. J., and STEVENS, DE GRAFF, and ALBERT, JJ., concur.

OPINION

WAGNER, J.

The plaintiff, Advance-Rumely Thresher Company, a corporation, has its head office at La Porte, Indiana, and a branch office at Omaha, Nebraska. It also has a local agent at Onawa, Iowa. The defendant is a boot manufacturer, living in Omaha, who owns and operates a considerable quantity of land in this state, in close proximity to Onawa and Mondamin. On June 28, 1928, the defendant, by a written contract, purchased from the plaintiff at its branch office in Omaha a Number 3 Rumely-Combine harvester, to be delivered at Onawa, Iowa. The purchaser executed two notes, to be applied upon the purchase price, one in the amount of $ 625, due August 15, 1928, which is the note in suit, and the other for $ 620, due September 15, 1928. The remainder of the purchase price, $ 301, was paid in cash at the time of the purchase, or soon thereafter. The written contract contains the following warranty:

"Said machinery is warranted to be well made and of good material and with proper use capable of doing as good work as any other machine of the same kind, size and rated capacity, working under like conditions. "

The contract provides that the purchaser shall not be entitled to rely upon any breach of warranty, or to rescind the contract, or to any claim or set-off against the vendor because of any breach, unless notice of the defect or breach, particularly describing the same and specifying the time of discovery thereof, is given by registered letter, addressed to the vendor at its head office, posted within four days after such discovery, and unless such defect or breach appears within ten days after the first use of the goods, and unless the vendor fails to remedy such defect or breach by substitution of parts, or otherwise, within a reasonable time after receipt of such notice, "which substitution it shall have the right to make." The contract further provides that the purchaser shall render necessary and friendly assistance to the vendor in and about remedying the defect.

Prior to the signing of the contract, there was considerable talk, as between the defendant and the assistant manager of the branch office at Omaha, appropriate objection to all of which testimony was made by the appellant, and it is not set out in the abstract. Under the issue of rescission and waiver thereof, as made by the pleadings and the record, the right thereto would be the same, whether based on fraud or breach of warranty. At the time of the purchase, the defendant informed the representative of the plaintiff that he required a 12-foot machine, and the representative informed him that they had a machine with a 10-foot cutting stretch and a detachable 2-foot extension which could be placed on it, and thus make it a 12-foot machine, which was inspected by the defendant before the purchase. It thus appears that it was bought and sold as a 12-foot machine. The harvester was delivered at Onawa July 10, 1928, and then hauled 20 miles, to a 60-acre field near Mondamin. Plaintiff's service man helped start the machine, but, because the grain was too green, the operation was deferred until a later day. A few days later, the machine was started, and was thereafter operated on different days until the 13th day of August. During the season of 1928, the machine harvested 80 acres of wheat in one tract, 20 acres in another, and part of another 180 acre tract. The harvester had given considerable trouble, and plaintiff's service men were sent, at various times, to adjust the machine, repair its parts, and endeavor to have it work to the satisfaction of the defendant. There is evidence that, on the third day, the defendant threatened to rescind. We deem it unnecessary to set out the evidence in detail as to the working of the machine, as it presented a jury question as to whether or not the harvester complied with the warranty. The defendant gave testimony to the effect that he hired a McCormick 10-foot machine to help harvest the 1928 crop; that the McCormick and Rumely machines were operated in the same field, cut the same type and quality of wheat straw, and under the same conditions, when he made the comparison; that, on August 9th, the Rumely harvested 154 bushels, 40 pounds, and the McCormick, 428 bushels. On August 10th, the Rumely harvested 180 bushels, 20 pounds; and the McCormick, 572 bushels, 20 pounds. On August 11th, the Rumely harvested 256 bushels, 40 pounds; and the McCormick, 499 bushels, 40 pounds. On August 12th, the Rumely harvested 60 bushels, 50 pounds; and the McCormick, 155 bushels, 50 pounds. He further testified that, during the test, the Rumely ran only a short time each day, because of continual breaking of fan belt and canvas. He also testified that the wheat from the McCormick was a great deal cleaner than that harvested by the Rumely.

Finally, on August 13, 1928, the defendant tendered the machine to the plaintiff's agent at Onawa, and by registered letter notified the plaintiff, at its home office, of his election to rescind the contract, and demanded the return of the purchase money. He states therein that the defects which have been reported to the representatives of the plaintiff from time to time have not been satisfactorily fixed, and that he feels that he has waited a reasonable time for the repairs to be made. He further states in said letter, as follows:

"In addition to many minor defects which have been called to their attention, the main five defects that are continuously giving us trouble, with the result that at no time since we received the machine, have we been able to get in more than two or three hours work per day, are as follows:

"First: The bottom plate on the return catching at the end.

"Second: The elevator platform catching at the top and breaking the slats.

"Third: The belts on the separator coming off or breaking.

"Fourth: The belt on the engine breaks continuously as not enough room for it.

"Fifth: The elevator is too long for the one pulley so that it breaks continuously.

"In regard to the fourth defect, your service men a week ago Sunday took the head of the engine down completely, sawing off certain bolts which he claimed were causing this trouble. However, since he did this work, this belt has continued to break once every day since then, that we have used the machine.

"For your further information, we have hired a McCormick Combine, putting it in the same field with your machine, with the result that both machines are working under exactly the same condition, but we find that the McCormick, every day since it has been in the field, has turned out more than double the amount of grain that your machine has. This of course, is directly contrary to the guarantee in your sales contract.

"If you desire, we can furnish you with a certified list of the number of bushels which your machine and which the McCormick ten-foot combine has been doing in the same field, from which you will find that the McCormick has been doing more than two to one, both in acres and bushels what this twelve-foot machine has been doing. This of course is directly contrary to the guarantee in your sales contract and therefore, we are returning this machine to your agent and herewith make demand for return of the cash payment made on the machine totaling $ 301.00 and the return of the purchase notes signed for the balance due on this machine."

Upon receipt of this letter by the plaintiff at the head office it wrote him, on August 14th, stating that copy of his letter had been referred to the branch manager at Omaha, and assuring him that Mr. Flowers (the manager at Omaha) would give the matter of defendant's complaint immediate attention. On August 16th, the branch office at Omaha wrote him declining to accept the return of the machine, for various reasons, and stating "that we stand ready and willing to remedy the defects, if any, complained of at the earliest reasonable date. If you will inform us when you desire a service man to go over this machine and place it in proper operating condition, we will have a competent man at the machine on the date you mention and will make the necessary repairs. Please advise what date you wish our mechanic to work on the machine and whether he shall do so at your farm near Onawa or in Onawa. " To this letter the defendant answered, declining any further service from the plaintiff's service men, standing firmly on the rescission made in...