Gaar, Scott & Co. v. Halverson

• Decision Date: 20 October 1905
• Parties: GAAR, SCOTT & CO. v. HALVERSON ET AL.
• Court: Iowa Supreme Court

128 Iowa 603

105 N.W. 108

GAAR, SCOTT & CO.

v.HALVERSON ET AL.

Supreme Court of Iowa.

Oct. 20, 1905.

Appeal from District Court, Winneshiek County; A. N. Hobson, Judge.

Action in equity to recover upon promissory notes, and to foreclose a chattel mortgage given to secure the same. There was a decree in favor of plaintiff, and the defendants appeal. Affirmed.E. P. Johnson and John B. Kaye, for appellants.

Carr, Hewitt, Parker & Wright and Dan Shea, for appellee.

BISHOP, J.

The notes in suit, three in number, were given in evidence of part of the purchase price of a traction engine sold by plaintiff to the defendant Jome. The defendant Halverson signed one of the notes as surety. Defendants admit the execution and delivery of the notes and mortgage, and they defend upon substantially two grounds: First, fraud in contract of sale; second, breach of warranty, and rescission of the contract on account thereof.

1. We find no evidence of fraud entering into the contract of sale. The contention goes no farther than that at the time of the sale it was represented by the selling agent of plaintiff that the engine was one which had been formerly used, and had then been rebuilt and was in good condition--practically as good as new; that it would steam well, and was of sufficient power to drive the threshing machine of defendant, for which purpose the purchase thereof was made. Without undertaking to set forth the evidence in detail, it is sufficient to say that what was said by the agent in respect of the engine having been rebuilt appears to be true. Beyond that, what was said by the agent was wholly in the nature of opinion. A mere expression of opinion, or “trade talk,” cannot be construed into a false representation. Des Moines Ins. Co. v. McIntire, 99 Iowa, 50, 68 N. W. 565;Neidefer v. Chastain, 71 Ind. 363, 36 Am. Rep. 198;Deming v. Darley (Mass.) 20 N. E. 107, 2 L. R. A. 743. But, if this were not so, the opinions expressed had relation to the service, ability, and capacity of the engine, and these matters were covered by the terms of the written warranty delivered to defendant at the time of the sale, and upon which they ground their right to rescind the contract.

2. By the contract of sale, delivery was to be made to defendant Jome on board cars at Decorah, and with warranty; the material provisions thereof being that the engine was to be of good materials, well constructed, and such as that, with proper use and management, the same would do as good work as any other engine of the same size and capacity, made for the same purpose. It is then provided that if, inside of six days from the first day of use, the engine fail to fill the warranty, written notice is to be given at once to plaintiff at its home office, and to the local agent making the sale, whereupon the company shall have a reasonable time to get expert workmen on the ground and remedy the defect. It is the further provision that, if the defects cannot be remedied, the company has the option to furnish a new engine or to return the consideration; and the doing of either shall terminate its liability. And, further, the use by defendant of the engine after the expiration of the six days shall be conclusive evidence of the fulfillment of the warranty, and defendant agrees, in such event, to make no other claim on plaintiff; and “the fact of any agent or expert of this company rendering assistance of any nature after the above-named warranty has been concluded [shall not] operate as an extension of the conditions thereof.”

While not wholly without dispute, the following facts, as we think, are established by the record. The contract of sale, including the warranty, was entered into July 31, 1902, both parties signing the same, and the engine arrived at Decorah on August 7th. On the day following, the defendant Jome examined...