Brandenberg v. Samuel Stores, Inc.
| Citation | 211 Iowa 1321,235 N.W. 741 |
| Decision Date | 10 April 1931 |
| Docket Number | No. 39923.,39923. |
| Parties | BRANDENBERG v. SAMUEL STORES, INC. |
| Court | United States State Supreme Court of Iowa |
OPINION TEXT STARTS HERE
Appeal from District Court, Linn County; John T. Moffitt, Judge.
Action in equity for the cancellation of a certain written contract for the purchase of a fur coat for restitution of a portion of the purchase price paid therefor. The defense was a general denial and a plea of res adjudicata. The trial court granted a decree of cancellation and awarded the plaintiff judgment in the sum of $85, with interest and costs.
Affirmed.
John D. Randall, of Cedar Rapids, for appellant.
Wells C. Peck and C. W. Meek, both of Cedar Rapids, for appellee.
The appellant conducts a store in the city of Cedar Rapids, under the business name and style of “Jordan's.” On or about the 10th day of December, 1926, the appellee visited said store for the purpose of purchasing a fur coat. A careful examination by appellee of the coats on hand failed to disclose that the appellant had in stock a fur coat of the particular kind and quality that appealed to the fancy of the appellee. The manager of said store agreed to endeavor to secure a coat that would suit the appellee by order direct from the manufacturers. Later, on or about the 24th day of December 1926, the appellant's manager advised the appellee that the coat had arrived. The appellee thereupon visited the store and examined the coat that had been procured by appellant. It appeared to be satisfactory, both as to the kind and character of the material of which it was made, and also as to its style and appearance. The coat was delivered to the appellee at said time and a written contract signed by appellee, which, however, contains no recitals as to any warranty. Appellee made payments on the coat in various installments until February 28, 1927, the total payments aggregating $85. The appellee contends that on or about said 28th day of February, 1927, she discovered that the coat was defective, in that portions of the fur were loose and came off in spots, exposing the bare hide. The appellee wore the coat from Christmas until February 28th, and two or three times a week during the month of March. In April, 1927, she consulted an attorney, who wrote a letter to the appellant demanding the return of the money paid by appellee and offering to return the coat. The matter appears to have remained in statu quo for some time, when the appellee served written notice of rescission of the contract of purchase upon the appellant. An amicable adjustment of the difficulties between the parties appearing not to be within the realm of possibilities, the matter was transferred to the courts, and the appellant commenced an action in replevin in the court of one Lightner, a justice of the peace. A writ of replevin was duly issued and thereunder said coat was seized. The replevin suit was, on motion, transferred to the justice court of one Travis. Subsequently, it seems the said justice adjudged that the defendant (appellee herein) have and recover judgment for the return of said fur coat. It appears that an appeal was taken from the ruling of the justice of the peace, to the superior court of the city of Cedar Rapids. In order to “make assurance doubly sure,” a writ of error was also sued out from said judgment of said justice of the peace to the said superior court. It also appears that another form of legal procedure being deemed available, a writ of certiorari was also sued out from superior court to said justice court. We gather from the record that the writ of certiorari was annulled on the ground that the case was pending on writ of error, and that the court refused to hear the case upon writ of error, because it was pending on appeal. The appellee herein filed in said court an instrument designated as a “special appearance and objection to the assumed jurisdiction of the court to entertain the above-entitled cause as a matter pending on appeal.” In the instant case it appears that two futile attempts have been made to plead the various proceedings in the justice courts and in the superior court as res adjudicata. The present status of these various legal marches and countermarches is not clearly and lucidly disclosed in the abstract and amendments. While the various courts were struggling with this multitudinous litigation, the casus belli appears to have been in the possession of the appellant and to have been repaired, if repair were needed, and restored to its original condition. In any event, upon the trial of the instant case, a fur coat was produced by the appellant, and a fierce battle raged in the evidence over the identity of said garment. Appellee insists that the coat so produced was not the garment which she purchased, while appellant protests vigorously to the contrary. The picture of the garment portrayed by the appellee is of a worn, ancient, dilapidated, frayed, rotton, shabby, unsightly, and worthless garment; while, on the other hand, the appellant insists that the garment was a new, first-class coat, of excellent material, and made in a first-class manner, and that it was in every way suited to meet the most fastidious requirements.
[1][2][3] I. The arguments of both parties are devoted chiefly to a discussion of the question of warranty. We assume, without so deciding, that appellee's petition pleads a cause of action predicated on a breach of warranty. Appellee's contention as to the representations made is largely embodied in the following excerpt from her testimony:
“I went over to see it and the coat was a Northern seal with marmot collar and cuffs. The first time I saw this coat was when they sent for me to come over after it arrived from the furrier's in New York. They said it was a coat from the furrier, a brand new coat.
Q. Did he tell you anything about how long it would wear you? A. He didn't say any particular time.
Q. Did you tell him you wanted a coat to wear for a number of years? A. Why, at that price, high price I paid, I wanted a genuine good fur coat and was putting that money into that coat.
Q. Did he tell you anything about the service of the coat, how it would wear you? A. Yes; he said I would get a number of years' service out of the coat, it is an A-No. 1 fur coat.”
It is argued that there was a breach of an implied warranty...
To continue reading
Request your trial
-
Ver Steegh v. Flaugh
...402-403, upholds a claim of implied warranty under 554.16, subd. 1 in the sale of hog spray. See also Brandenburg v. Samuel Stores, 211 Iowa 1321, 1324-1325, 235 N.W. 741, 77 A.L.R. 1161; Hughes v. National Equipment Corp., 216 Iowa 1000, 1006-1007, 250 N.W. The Annotation to Mousel v. Widi......
-
Drager v. Carlson Hybrid Corn Co.
...the goods are required, and (2) it appears the buyer relies on the seller's skill or judgment. See Brandenberg v. Samuel Stores, 211 Iowa 1321, 1324, 1325, 235 N.W. 741, 77 A.L.R. 1161; Kurriss v. Conrad & Co., 312 Mass. 670, 46 N.E.2d 12, 16; 46 Am.Jur., Sales, section There can be little ......
-
Hunt Truck Sales and Service, Inc. v. Omaha Standard
...8 Cir., 1930, 43 F.2d 63; Drager v. Carlson Hybrid Corn Co., 1952, 244 Iowa 78, 56 N.W.2d 18; see also, Brandenberg v. Samuel Stores, 1931, 211 Iowa 1321, 235 N.W. 741, 77 A.L.R. 1161. It appears that Florida Tank became interested in hopper bottom type bulk cement trailers as a means to sp......
-
Lothrop v. Heed.
...v. F. W. Woolworth Co., 308 Mass. 423, 32 N.E.2d 256, 258; Landers v. Safeway Stores, 172 Or. 116, 139 P.2d 788. 3Mandel v. Mulvey, supra. 4Brandenberg v. Samuel Stores, Inc., 211 Iowa 1321, 235 N.W. 741, 77 A.L.R. 1161. 5Henderson v. Allison, D.C.Mun.App., 44 A.2d ...