Briggs v. Rumely Co.

• Decision Date: 24 October 1895
• Citation: 96 Iowa 202,64 N.W. 784
• Parties: BRIGGS ET AL. v. RUMELY CO.
• Court: Iowa Supreme Court

96 Iowa 202

64 N.W. 784

BRIGGS ET AL.

v.RUMELY CO.

Supreme Court of Iowa.

Oct. 24, 1895.

Appeal from district court, Linn county; J. H. Preston, Judge.

Action at law to recover for the breach of warranty of a threshing machine sold by the defendant to the plaintiffs. Trial by jury. Verdict and judgment for the plaintiffs. Defendant appeals. Affirmed.Mills & Keeler, for appellant.

W. F. Fitzgerald and Jamison & Burr, for appellees.

ROTHROCK, J.

1. The defendant manufactures threshing machines at La Porte, in the state of Indiana. On the 29th day of July, 1892, the plaintiff purchased a machine of the defendant, from one of its agents, at Cedar Rapids, in this state. The contract was in the form of an order for the machine, and the price agreed to be paid was $708, and the freight on the machine from La Porte to Estherville in this state. The part of the contract material to be considered in determining the case is as follows: “The undersigned hereby agrees to fully settle for the foregoing machinery before it is delivered to them, by paying said cash (if any) and giving said notes, and a mortgage on the said machinery, and also further approved security, as follows: As a condition hereof, it is fully understood and agreed: (1) That this order is given subject to the acceptance of M. Rumely Company, and that no promise, whether of agent, employé, or attorney, in respect to the payments, security, or to the machinery named, will be considered binding, unless made in writing and ratified by the home office; and in case of delay in shipment, the M. Rumely Company shall not be held responsible for any loss or damage sustained by the undersigned as a result of such delay. (2) That the title to the said goods shall not pass until settlement is concluded and accepted by the M. Rumely Company. * * * (4) The above separator is warranted, with proper management, to do as good work, in threshing and cleaning grain, as any other separator of its size in the United States, to be of good material, and durable with proper care. (5) If said machinery fails to comply with this warranty, notice in writing of such failure must be given to M. Rumely Company, La Porte, Indiana, and to their agent who sold the machinery, within one week from the date of starting said machinery, and upon receipt of such notice, time allowed, opportunity and friendly assistance given, to reach the machinery and remedy such defects, if any; otherwise, the said warranty is waived, and M. Rumely Company not responsible thereon. If the machinery cannot be made to fulfill the warranty, it shall be returned free of charge by the purchasers to the place where received, and money and notes (if previously settled for) to the amount represented by the above machinery shall be returned, and no further claim be made on M. Rumely Company. Failure to give such notice, or any use of such machinery after such time has elapsed, without such notice, shall be deemed conclusive evidence that such machinery complies with the warranty; or, if said machinery be settled for, and notes given for the same after having tried the same, then such failure, or such trial and settlement, shall forever bar and estop the purchaser from all claims for damages on account of a breach of such warranty. Defects and failure in one part shall not condemn any other part. No agent is authorized to change the foregoing warranty, nor to give any other or different warranty, either verbally or written. Estherville P. O., Estherville Tp., Emmett Co. [Signed] J. M. Briggs and J. W. Lucas, by J. M. Briggs.” The machine was shipped, and arrived at Estherville, and was unloaded by the plaintiffs on Saturday, the 20th day of August, 1892. On the following Monday they set it up, and threshed 50 or 60 bushels of barley, and quit work because of rain. The next day was so wet that they could not continue threshing. An agent of the defendant named Tucker appeared at Estherville on Tuesday evening, and the plaintiffs settled with him for the machine by giving him three notes of $236 each, with interest thereon from date at 7 per cent., and to become due in one, two, and three years from the 1st day of December following. The notes were secured by a chattel mortgage on the machine. It is urged in behalf of defendant that the court should have sustained a motion to direct a verdict for the defendant, because the plaintiffs waived the warranty by giving the notes and settling for the machine after having given it a trial. It is true that the contract provides that, if the machine be settled for, and notes given therefor, “after having tried the same,” the trial and settlement shall estop the purchaser from availing himself of a breach of the warranty. The court correctly overruled the motion for a directed verdict, because the evidence did not show any such a trial as was contemplated by the contract. The contract was not a warranty that the machine would thresh barley only in a proper manner. It was the right of the plaintiffs to test the efficiency of it in all kinds of threshing. And it is wholly immaterial what the agent stated to the plaintiffs to the effect that the settlement was not to be a waiver of the warranty. No act had been done by the plaintiffs which authorized court or jury to find that the warranty was waived by...