Ellis v. Barkley
| Decision Date | 02 July 1913 |
| Citation | 160 Iowa 658,142 N.W. 203 |
| Parties | ELLIS v. BARKLEY. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Mahaska County; Byron W. Preston, Judge.
The plaintiff purchased from defendant a team of mules which he alleges defendant warranted to be gentle and true and not liable to run away. Plaintiff paid the agreed price and took the mules but alleges that on attempting to use them they promptly ran away with him and proved to be intractable and unmanageable. He thereupon offered to return the team to defendant, declared the contract of purchase rescinded, and demanded a return of his money. His demand being refused, he brings this action alleging a breach of the warranty and asks to recover the damages he has thereby sustained. Defendant admits that he sold the team to plaintiff but denies that he warranted it in any respect. The jury found for the defendant, and from the judgment rendered on such verdict the plaintiff appeals. Affirmed.Burrell & Devitt, of Oskaloosa, for appellant.
I. C. Johnson and S. V. Reynolds, both of Oskaloosa, for appellee.
[1] The controversy involves two simple questions of fact: First, Did the defendant warrant the mules? and, second, if there was a warranty, has there been a breach of its terms? If both inquiries are answered in the affirmative, plaintiff is entitled to damages. If either is answered in the negative, there can be no recovery. Whether there was a warranty or breach of warranty is a matter of dispute in the testimony, and on familiar principles the verdict of the jury thereon must stand, subject of course to plaintiff's right to a review of errors upon the introduction of evidence and the instructions given the jury. The following are the only exceptions argued:
[2] One or more witnesses were permitted to testify to having seen the mules being used in harness on other occasions shortly prior to their sale to plaintiff and that they appeared to behave well. The admission of evidence of this character is said to be erroneous because, the issue being whether defendant warranted the team, it is immaterial how they acted before the sale. But this is taking a much too narrow view of the issues. To recover, as we have already said, plaintiff must not only establish the warranty but the breach as well. The representation, even according to plaintiff's story, was not that the mules would never run away but rather to the effect that they were well broken, gentle, and not addicted to running away. Upon an inquiry into the truth of such statements and whether it be a fact, as plaintiff claims, that he found them wild or fractious or unsafe, proof of their conduct in harness and in the performance of work would seem to be the best available evidence, whether their real quality or character was misstated by the defendant. In other words, while such testimony is not to be considered upon the question whether defendant did or did not warrant the team, it may be considered in finding whether the warranty, if one was given, has been broken. The objection to its admission was properly overruled.
[3][4] Misconduct of counsel is also assigned as ground for reversal. It is charged that in argument to the jury counsel for defendant made a statement to the effect that plaintiff was rich while defendant was a poor man and a verdict in favor of plaintiff would break defendant up. The remark was not taken down at the time, and it is brought into the record only by an affidavit of the plaintiff attached to his motion for a new trial. The affidavit discloses that...
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