First Nat. Bank of Webster City v. Dutcher

• Decision Date: 13 July 1905
• Citation: 104 N.W. 497,128 Iowa 413
• Parties: FIRST NAT. BANK OF WEBSTER CITY v. DUTCHER ET AL.
• Court: Iowa Supreme Court

128 Iowa 413

104 N.W. 497

FIRST NAT. BANK OF WEBSTER CITY

v.DUTCHER ET AL.

Supreme Court of Iowa.

July 13, 1905.

Appeal from District Court, Hamilton County.

The opinion states the case. Affirmed.

Wesley Martin, for appellant.

W. J. Covil, for appellee First Nat. Bank.

Boeye & Henderson, for appellee William J. Dutcher.

WEAVER, J.

On September 9, 1901, the appellee William J. Dutcher, with his mother, Permelia L. Dutcher, as an alleged surety, entered into a written contract with the Plano Manufacturing Company for the purchase of a corn husking and shredding machine, manufactured by said company. The agreed price of the machine was $650, for which Dutcher executed several notes, one of which was assigned to the plaintiff bank before maturity and in due course of business. The bank having brought action to recover upon said note from William J. Dutcher, he appeared thereto and filed a cross-petition, impleading the Plano Manufacturing Company. By this pleading it is alleged that the machine was purchased under a warranty, and, not complying therewith, the defendant had returned it and demanded of the plaintiff a surrender of the notes given by him for the purchase price, which demand was refused. It is also alleged that the notes have been transferred by the company to an innocent holder, against whom the defense based on the breach of warranty is unavailing. It is further shown that the warranty relied upon was in writing, and by its terms required the purchaser to give written notice to the company and its local agent, if, after two days' trial, the machine proved to be not as represented. The cross-petition alleges that this condition was in fact complied with; but it is also claimed that the several conditions upon which the warranty was made to depend were waived by the company and its agents, and that by their request and direction the appellee continued the use of the machine and the attempt to make it work successfully beyond the time mentioned in the contract.Damages are asked from the company for the full amount of the notes given for the purchase price, $650, and for freight paid upon the machine, $29.25, with interest. The manufacturing company admits the sale of the machine and the warranty thereof upon the terms stated in the writing, but denies that the said purchaser has performed the conditions thereof on his part, and denies that it has ever waived such performance. In the principal case the bank recovered judgment against Dutcher for the full amount of the note sued upon, and from this judgment no appeal has been taken. On the issues joined upon the cross-petition there was a trial to a jury and verdict in favor of Dutcher and against the Plano Manufacturing Company in the sum of $750. From the judgment entered on this verdict the manufacturing company appeals. The appellant contends, first, that no breach of the warranty is shown by the record; and, second, that the record discloses without controversy the failure of the appellee to comply with the conditions upon which the contract makes the effectiveness of the warranty depend.

1. The proposition that the alleged breach of warranty is without support in the evidence cannot be maintained. The undertaking of the company was that the “machine is warranted to be of good material and workmanship, and, when properly adjusted and operated, to do good work.” This is probably neither more nor less than the warranty, which in the absence of the writing the law would imply, that the machine was reasonably well made, of good material, and adapted to the uses and purposes for which it was constructed. Without attempting to rehearse the testimony, we may say that, if the appellee and his witnesses are to be believed, the history of the attempt to operate the machine from the time it was started under the supervision of the appellant's agent until the experiment was finally abandoned was a continuous series of failures. According to their story, though handled with ordinary care and skill, the machine was not only inefficient and incapable of turning out a reasonable amount of work, but the breaking of parts and consequent serious delays were a matter of daily occurrence. True, the appellant's testimony tends to show that the machine worked with reasonable success, and that the breaks and failures complained of were, in a large degree at least, occasioned by negligence or want of skill on part of the appellee and his assistants; but the conflict thus presented was one of fact, and under familiar principles its determination was a question for the jury.

2. The question most strenuously insisted upon in argument is whether there is sufficient evidence of a performance or waiver of the condition attached to the written warranty to justify the trial court in submitting the appellee's claim for damages to the jury. The conditions pleaded in the company's answer, and upon which it relies to defeat the recovery upon the warranty, are contained in written contract or order given for the machine, and are as follows: “If, within two days from the time of its first use, the said machine shall fail in any respect to fill the warranty, written notice shall immediately be given by the purchaser to the Plano Manufacturing Company at Chicago, Illinois, by registered letter, and to the local agent through whom the same was ordered, stating wherein it fails to fill the warranty, and a reasonable time shall be given the Plano Manufacturing Company, and the agent through whom ordered, to send a competent person to remedy the difficulty; the purchaser to give the necessary and friendly assistance, and furnish the necessary material and power to start, operate, and test the machine, and help in general wherever it may be needed free of charge. * * * Possession or use of said machine after two days from the time of its first use, without giving notice as above, shall be conclusive evidence of the fulfillment of the warranty and full satisfaction to the purchaser.”

Concerning the requirement for notice to the appellant, there was evidence from which the jury could find that, at the close of the second day's trial, the appellee did write and mail to the appellant's proper address an unregistered letter giving notice of his objections to the machine. It is argued that the failure to register the letter is such an omission as will in itself defeat any claim under the warranty. Upon this point the trial court instructed the jury that if the appellee within the required time mailed a letter to the appellant giving notice of the alleged defect in the machine, and the appellant did in fact receive the letter in due course of mail, then the failure to register was immaterial and the notice was sufficient. Error is assigned upon the giving of this instruction. The rule stated by the trial court has more or less support in the cases. See Advance Thresher Co. v. Curd (Ky.) 85 S. W. 690;Badgett v. Frick (S. C.) 5 S. E. 355;Kenny v. Anderson (Ky.) 81 S. W. 663;Mach. Co. v. Ridenour, 96 Iowa, 638, 65 N. W. 980;Frick v. Morgan (Ky.) 69 S. W. 1072.

But under the conceded facts in this record we think that, even if erroneous, no prejudice to appellant could have resulted. It appears without dispute that the first two days' trial was had in the presence and with the personal assistance of the appellant's agent who sold the machine. That this trial was thought insufficient and unsatisfactory by both is evidenced by the fact that the agent continued with the machine, actively assisting and directing the effort to make it work, for much of the time covering a period of several weeks, when an expert employed by the appellant appeared and continued the experiment until within a short time before appellee returned the machine. The agent to whom reference has been made was a member of a firm having charge of the appellant's local business at Webster City. He was also what he terms the “block man”; that is, he had the charge and oversight of appellant's business in a given territory, called a “block,” comprising about one-fourth of the state, including Webster City. He says his duties in that capacity were various--“making settlements with local agents, furnishing repairs, taking notes, and selling machines and settling for them.” The appellee testifies that Rood (the agent) sent the expert “from the Plano Company,” and that such expert received letters from the company concerning the machine while he was working with it. These trials by the block man, the agent, and the expert must have covered very nearly the entire period during which the machine was in appellee's possession, and it is quite clear that he was induced to keep it and continue the endeavor to make it work by the encouragement, assurances, and requests of these different representatives of the appellant. All this was done after the expiration of the two-day limit for giving notice by the purchaser, and without any claim or objection that no notice had been given. Under the uniform holdings of this court we must hold that the requirement for written notice after two days' use of the machine was waived, and there was no error in submitting the alleged breach of warranty to the finding of the jury. Insurance Co. v. Dierks, 43 Neb. 482, 61 N. W. 740;Dean v. Nichols, 95 Iowa, 89, 63 N. W. 582;Davis v. Butrick, 68 Iowa, 98, 26 N. W. 27;Peterson v. Wood, 97 Iowa, 148, 66 N. W. 96, 59 Am. St. Rep. 399;Pitsinowsky v. Beardsley, 37 Iowa, 9;Massillon v. Shirmer, 122 Iowa, 699, 98 N. W. 504;Blaess v. Nichols, 115 Iowa, 373, 88 N. W. 829;McCormick v. Brower, 94 Iowa, 144, 62 N. W. 700;McCormick v. Russell, 86 Iowa, 556, 53 N. W. 310;Warder v. Robertson, 75 Iowa, 585, 39 N. W. 905;Briggs v. Rumely, 96 Iowa, 202, 64 N. W. 784; 2 Mechem on Sales, § 1385; Flatt v. Osborne, 33 Minn. 98, 22 N. W. 440;Sandwich v. Feary, 40 Neb. 226, 58 N. W. 713;Champion v. Mann, 42 Kan. 372, 22 Pac. 417;Springfield v. Kennedy (Ind. App.) 34 N. E....