Davis v. Robinson

• Court: Iowa Supreme Court
• Writing for the Court: REED
• Citation: Davis v. Robinson, 25 N.W. 280, 67 Iowa 355 (Iowa 1885)
• Decision Date: 23 October 1885
• Parties: DAVIS AND OTHERS v. ROBINSON.

67 Iowa 355

25 N.W. 280

DAVIS AND OTHERS

v.ROBINSON.

Supreme Court of Iowa.

Filed October 23, 1885.

Appeal from Buchanan circuit court.

Plaintiffs brought this action to recover the value of a threshing-machine, which they allege defendant agreed to deliver to them as part payment for a machine which they sold and delivered to him. They allege that in July, 1883, they sold and delivered to defendant a threshing-machine for the price of $650, and that they agreed to accept, and defendant agreed to deliver, in payment of $150 of the amount, an old threshing-machine then owned by him; and that he had refused on demand to deliver said machine.

Defendant admits that he purchased the machine from plaintiffs on the terms alleged in the petition, and that they have demanded the delivery of the old machine, and he had refused to deliver the same. He also pleaded a counter-claim on account of the alleged failure of the warranty of the machine bought by him of plaintiffs, also on account of the wrongful suing out by plaintiffs of a writ of attachment in the cause. There was a verdict and judgment for defendant. Plaintiffs appeal.Charles E. Ransier, for appellants, John S. Davis' Sons.

H. W. Holman and E. E. Hasner, for appellee, C. H. Robinson.

REED, J.

The machine sold by plaintiffs to defendant was purchased and sold on the following warranty and agreement: “* * * That it is well made of good materials, and with proper management is capable of doing first-class work; that the purchaser shall have three days to give it a fair trial, and if it should not work well, written notice, stating wherein it fails, is to be given to the agent from whom it is received, and to John S. Davis' Sons, Davenport, Iowa, and reasonable time allowed to get to it and remedy the defects, if any, (the purchaser rendering necessary friendly assistance;) when, if it cannot be made to do good work, it shall be returned to the place where received, and a new machine given in its place, or the notes and money will be refunded. Continued possession of the machine shall be evidence of satisfaction; it being understood and agreed that if the purchaser does not make full settlement with cash or approved notes for the machine upon its delivery to him, he thereby waives all claims under this warranty. (No agent has authority to change the above warranty.)”

The contract also provides that defendant will pay $650 for the machine, as follows: “Cash, old machine, $150; note due December 1, 1883, $200; note due December 1, 1884, $200; note due December 1, 1885, $100.” Also that said notes should be secured by a chattel mortgage on the machine. When defendant received the machine, he executed and delivered the notes and mortgage provided for in the contract. The machine did not work in a satisfactory manner, and defendant verbally notified the agent from whom he received it of the fact, and the agent telegraphed to plaintiffs asking them to send a man to fix the machine. Defendant also telegraphed them making the same request. Neither of these notices to plaintiffs informed them wherein the machine failed. They, however, in the course of a few days, sent a man to defendant's place who undertook to run the machine; defendant furnishing the necessary help, also furnishing grain to be threshed. But he was not able on that day to make it work in a satisfactory manner, and there is evidence tending to prove that he declared that he could not make it do good work, and that he directed defendant to stack it up on his place and let it remain there until he heard from plaintiffs. Also that he stated that he would inform plaintiffs of the failure of the machine, and would endeavor to procure and return to defendant the notes which he gave for the machine. This attempt of the agent to make the machine work was made on a Saturday, and on the evening of that day he returned to Davenport, (where plaintiff's place of business is situated,) and on the following Monday he went again to defendant's place, taking with him certain attachments which he proposed to place on the machine, and then make another trial of it. But defendant declined to render any further assistance in the effort to make it work, or to retain it on any conditions.

There is also evidence tending to show that defendant on the first day on which the agent attempted to make the machine work offered to accept another machine if plaintiffs would at once ship it to him at their cost, but that the agent then informed him that plaintiffs had no machine of the size of the one in question. The machine remained on defendant's place for about two months after the trial, when defendant hauled it to the railroad station where he had received it, and notified plaintiffs of what he had done with it, and demanded the return of his notes. Plaintiffs, however, had transferred the notes to a third party, who afterwards foreclosed the chattel mortgage given for their security, realizing enough on the sale of the machine under the foreclosure proceedings to satisfy the note first falling due and credit $53.78 on one of the other notes.

1. Plaintiffs asked the court to instruct the jury that under the pleadings they were entitled to recover the price of the old machine, with interest thereon from the date of defendant's refusal to deliver it. The court added the following to the instruction as asked: “Unless you find under the evidence and these instructions that the entire consideration for said old machine had failed before the demand for the delivery of said machine was made by plaintiff;” and with this modification gave it to the jury. Plaintiffs assign the giving of this modification as error. Their position is that the modification is not applicable to the issues as made by the pleadings. As indicated in the statement of the case, plaintiffs sought to recover the value of the old machine. They set out in their petition the contract for the sale by them of the new machine to defendant, including the warranty.

In the first division of his answer defendant admitted the making of this contract, and admitted that plaintiffs had demanded the delivery of the old machine, and that he had refused to deliver it, but alleged that “such demand and refusal was after an entire failure of the conditions of the warranty of the machinery purchased from plaintiffs by defendant.” The language here quoted contains the only matter attempted to be pleaded as a defense to plaintiffs' demand. The paragraph contains no statement of the conditions of the warranty, nor does it contain any specific statement of the failure of the warranty. It, however, admits the making of the contract as alleged in the petition, and it contains the general allegation that there was an entire failure of the conditions of the warranty. As plaintiffs made no question of the sufficiency of this pleading before the trial, if the failure of the warranty alone constituted a defense to their demand, they would not now be permitted to allege that such failure of warranty was not sufficiently pleaded. But the mere failure of the warranty does not constitute a defense. The contract provides that if the machine shall fail to comply with the warranty, plaintiffs shall be notified of...