Bales v. Massey, 47603
| Decision Date | 01 August 1950 |
| Docket Number | No. 47603,47603 |
| Citation | 241 Iowa 1084,43 N.W.2d 671 |
| Parties | BALES et al. v. MASSEY. |
| Court | Iowa Supreme Court |
Paul W. Walters and Robert R. Jordan, Jr., both of Des Moines, for appellants.
J. R. McManus, of Des Moines, for appellee.
Plaintiffs' action seeks to establish recission of the sale by the defendant to plaintiffs of a grand piano and to recover the sum of $1,320.95 which it is claimed represents the purchase price paid by them. They maintain there was an expressed warranty that the piano purchased was new. The defendant company in its answer admitted that the piano sold the plaintiffs was a rebuilt piano but denied any warranty as claimed by the plaintiffs. Upon the submission of the plaintiffs' evidence the trial court directed a verdict for the defendant and thereafter overruled plaintiffs' motion for a new trial. They have appealed.
The appellants are husband and wife and reside in Des Moines, Iowa. In October 1946 Dorothy Bales, one of the appellants, acting for herself and husband purchased a new Kimball spinet piano from the defendant paying $734.40 for it. Approximately three months after this purchase the appellants decided that a larger piano would add to the attractiveness of their large living room. Mrs. Bales went to the appellee's place of business and conferred with a salesman relative to the purchase of a baby grand piano. She testified that in her negotiations for the purchase of the second piano she told the salesman for the appellee that she wanted a new one. At the conclusion of the negotiations a Story-Clark grand piano was selected by her for the agreed purchase price of $1,320.95. Credit of $734.40 was given on the transaction by the return of the spinet piano. This last purchase was made on January 7, 1947.
The appellants in their petition alleged in substance the facts as previously set forth and further therein stated that at the time of the negotiations for the purchase of the grand piano a representative of the appellee showed her a Story-Clark grand piano which was priced at $1,295. It was alleged the salesman did not disclose that the grand piano was not a new one; that it was agreed that the piano would be sold for $1,295 plus $25.95 sales tax or for a total of $1,320.95 and that an allowance of $734.40 would be allowed for the return of the spinet piano; that thereafter the spinet piano was returned to appellee and the appellants paid to appellee the difference due of $586.50 ($586.55).
In appellants' petition it is also alleged that it was not until about June 26, 1947 that it was learned the piano was not new but that it had been rebuilt and refinished in such a manner as to appear to be new. It was further alleged that they had informed appellee's representative that they wished to purchase a new piano and relied upon the representations and warranties made to them.
It was further pleaded that on July 9, 1947 they notified the appellee in writing of their election to rescind the sale and offered to return the piano and demanded the return of the purchase price. They asked judgment against the appellee for $1,320.95 with interest and costs.
The defendant appellee in his answer admitted that Dorothy Bales, one of the appellants purchased a Story-Clark grand piano for the sum mentioned in the petition, that credit was given for the return of the spinet piano and the difference of $586.50 ($586.55) was paid by appellants. It is alleged that Mrs. Bales was told that the grand piano was not a new one at the time of its purchase and that a full disclosure was made to her.
It is further alleged in the answer that on or about the date mentioned in the petition the appellants sent a letter wherein they attempted to rescind the transaction. The appellee also pleaded that it was a 'new piano which had been refinished and rebuilt.' It was further therein stated that appellants were informed at the time of the purchase that 'the same guarantee went with the sale of the used piano which they were purchasing as was made with a new piano. * * *' The answer alleged that the piano sold was represented to be a used one.
It is the claim of the appellants in their printed and oral arguments before this court that they had pleaded an oral contract of purchase. This fact is not specifically stated in their amended and substituted petition but perhaps may be inferred inasmuch as no statement was made whether the contract was oral or written. This fact is not too material as will be hereinafter noted.
During the course of the submission of the appellants' testimony evidence was introduced to the effect that the piano was not a new one and that it had been built for over twenty years. At the time of the cross-examination of Dorothy Bales the appellee submitted to her a conditional sales agreement signed only by Mrs. O. V. Bales (Dorothy Bales), which is, in part, as follows:
Mrs. Bales in her testimony stated the description of the piano purchased was not on the instrument at the time she signed it. There was no pleading on the part of either the appellants or appellee relative to this conditional sales agreement or concerning any alteration of the instrument signed. No amended pleadings were filed by either party relative to this sales agreement during the course of the trial. However, most of the cross-examination of Mrs. Bales and her re-direct examination pertained to the written conditional sales agreement signed by her and its claimed alteration. In connection with the redirect examination of this witness and the effort to show that the instrument in question had been varied after she signed it and that there were misrepresentations made at the time of the sale, appellants' counsel offered in evidence the written purchase agreement. Appellee then joined in the offer.
As alleged in the petition the evidence shows that on July 9, 1947 the appellants addressed a communication by registered mail to the appellee wherein reference was made to the purchase of the grand piano and that there had been representations made by a salesman that the piano sold the appellants was a new one. This communication further advised the appellee that on or about June 26, 1947 they learned for the first time that the piano was not a new one. It was therein further stated that they were dissatisfied with the transaction as made in that they had bargained for a new piano and that by reason of these facts they were, by the communication sent the appellee, rescinding the sale and were holding the piano subject to appelle...
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