Daugherty v. Advance-Rumely Thresher Co.
| Decision Date | 21 December 1920 |
| Docket Number | 33193 |
| Citation | 180 N.W. 277,190 Iowa 424 |
| Parties | C. L. DAUGHERTY, Appellee, v. ADVANCE-RUMELY THRESHER COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Clay District Court.--JAMES DE LAND, Judge.
ACTION to recover the consideration paid by plaintiff for a tractor engine, together with the expense of repairs and freight. There was a verdict for plaintiff, and defendant appeals from a judgment thereon against it for $ 1,920.98 and costs.
Affirmed.
Strock Wallace & McConlogue and Buck & Kirkpatrick, for appellant.
Heald & Cook, for appellee.
Plaintiff alleged in his petition that, on or about August 27, 1917, he gave a written order to the defendant, through one Tony Rubes, its agent and salesman, for "one gas pull, rated 15, tractive H. P. 30; brake H. P. tractor with usual equipment, with kerosene equipment, also furnish with extension rims," agreeing to pay therefor as follows: To execute a note for $ 1,170, due October 1, 1918, and to deliver to the defendant, free of incumbrance, F. O. B. cars at Ruthven, Iowa, a secondhand Heider tractor. He also alleges that the said written order provided:
"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; but any machine or part thereof not manufactured for or by vendor, or which is secondhand, rebuilt, or repaired, is not warranted, by statute or otherwise."
He further alleges that the defendant, through its agent aforesaid, represented that the said tractor was a kerosene pull; that it would pull four plows through stubble, and three plows through sod, with kerosene as a pull; that it was capable of doing the work for which plaintiff desired it; that the secondhand Heider tractor was delivered to defendant on the day the order was signed, and his note, as agreed, on September 10th; that the tractor was delivered at plaintiff's farm on or about said date; that plaintiff, with the aid of defendant's agent and experts, attempted to operate said tractor, but that its power was totally inadequate to pull four plows in stubble or three plows in sod; that defendant's representatives were unable to operate it successfully; that it was not, in fact, a kerosene, but a gasoline pull. He also alleges other representations of the agent and defects in the tractor.
Plaintiff further alleged that the written order signed by him provided, as a condition precedent to any right of rescission of the contract, that he give defendant notice, specifying the defect or breach of the warranty, together with the time of discovery, by registered letter, addressed to it at its head office, within four days after discovery thereof; that he did give oral notice immediately to defendant's agent, who promptly responded, and undertook to repair, adjust, and place the tractor in condition for use; and that the said defendant thereby waived the provisions of the contract requiring notice by registered letter, within the time specified.
The answer of defendant admitted the execution and receipt of the signed order, with warranty, and of the consideration, as set forth in plaintiff's petition, and otherwise denied the allegations of the petition.
The evidence on the part of the plaintiff tended to sustain all of the allegations of the petition, and that on the part of the defendant, to show that the tractor was in good order and working condition, when it was delivered to plaintiff at his farm; that, when he undertook to operate it, he did so in such a manner that the shifting gears were broken, and the tractor severely damaged; that, after it had been repaired and adjusted, it worked properly, and fully met the requirements of the written warranty. The evidence as to these matters is in dispute, and was properly submitted to the jury; and its finding thereon is conclusive. Plaintiff admitted that the shifting gear and some castings were broken while he was attempting to operate the tractor, but testified that it was caused by a set screw which was insufficiently fastened in place and which came loose, and got into the gearing.
I. Plaintiff's petition was filed March 1, 1918, but the cause did not come on for trial until in January, 1919. On January 13th, shortly before the case was reached for trial, the defendant filed a motion for continuance, based upon the absence of W. O. Coyne, who was defendant's expert that delivered the tractor to plaintiff, and later repaired, readjusted, and attempted to operate it for plaintiff. The motion was sustained by the court; whereupon counsel admitted that the witness, if present, would testify to the matters set out in the affidavit attached to the motion for continuance. Before the trial began, however, the defendant filed an additional affidavit for a continuance, reciting that the absent witness was present after the tractor was broken, assisted in repairing, adjusting, and operating it, and that the information possessed by him made his advice necessary, if not indispensable, to a proper presentation of defendant's evidence. This application was overruled, and of this ruling defendant complains. The witness was, at the time, a soldier in the United States army, stationed at Camp Pike, near Little Rock, Arkansas. Nothing definite was known as to when his attendance could be procured, but it was believed that he would be discharged from the army in a few weeks. The admission of counsel for plaintiff entitled the defendant to read to the jury the affidavit attached to the original motion for a continuance, which was done, with the exceptions of some conclusions stated therein; and we do not think that the ruling of the court was an abuse of its discretion.
II. Plaintiff, over the objections of counsel for appellant that the competency of the witness was not shown, was permitted to testify to the reasonable market value of both the new and the secondhand tractor; that the damages to the tractor were caused by a set screw, that came loose and became entangled in the gearing; and that the tractor should, with four bottoms, plow 12 acres of stubble in 8 hours. Plaintiff was a farmer, accustomed to automobiles; owned and had operated the Heider tractor for 2 or 3 years; and had had more or less experience with the operation of a tractor used in connection with a threshing machine outfit; and, we think, was clearly competent to testify on the question of values. Winklemans v. Des Moines N.W. R. Co., 62 Iowa 11, 17, 17 N.W. 82; Worrall v. Des Moines Retail Grocers' Assn., 157 Iowa 385, 138 N.W. 481; Tubbs v. Mechanics' Ins. Co., 131 Iowa 217, 108 N.W. 324. He testified that he saw the set screw in the gearing; and it is not claimed that the damages could not have been caused thereby, but that there was not set screw in any part of the tractor that could possibly have gotten into the gearing. His testimony on this point, as well as to the number of acres the new tractor should have been capable of plowing, was competent. Even if it were conceded that the competency of the witness to testify as to the number of acres the tractor in question should have been capable of plowing in eight hours was doubtful, it is in substantial harmony with the testimony of the witness Rubes, called by defendant, and was not prejudicial.
III. On October 23, 1917, plaintiff addressed a letter to the defendant at LaPorte, Indiana, in substance stating that after its experts had worked four days with the tractor, it could not be operated, demanding the return of his note, and offering to deliver the tractor...
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