George E. Pew Co. v. Karley & Titsenor
| Decision Date | 19 December 1914 |
| Docket Number | 29645 |
| Citation | 150 N.W. 12,168 Iowa 170 |
| Parties | GEORGE E. PEW COMPANY, Appellant, v. KARLEY & TITSENOR et al., Appellees |
| Court | Iowa Supreme Court |
Appeal from Plymouth District Court.--HON. DAVID MOULD, Judge.
ACTION in equity to foreclose a mechanic's lien. On trial the court found for the defendants and plaintiff appeals. The material facts are stated in the opinion.
Affirmed.
McDuffie & Keenan, for appellant.
Nelson Miller, for appellees.
The petition states, in substance, that under a written contract with the defendants, plaintiffs furnished them a certain electric engine, with specified accessories, to be placed in and used in connection with a building owned by one of the defendants in the city of Le Mars; and that a claim for mechanic's lien for the agreed price of said improvements had been duly filed. They further allege that defendants refuse to pay the contract price and pray a decree for enforcement of the lien. Defendants deny the claim thus made against them. They admit, however, giving the written order referred to in the petition, but say that prior to giving the same they had been conducting a moving picture show in said building, and in operating the same they made use of electric power furnished by the Le Mars Water and Light Company and were so using it when plaintiff proposed to them to put in a private electric plant. They further aver that they had no knowledge of electric light plants and plaintiffs represented and warranted that the engine and dynamo to be furnished and installed by them would be of sufficient capacity to supply their needs, both for lighting purposes and for their use in the operation of their lamps for the production of pictures; and that defendants, relying upon said representations and warranty, gave plaintiffs an order for a six-horse power engine, which order was later so changed as to call for an engine of nine-horse power. They further aver that when plaintiffs installed said engine and undertook to make it do the work it utterly failed to produce or furnish the required light and power. They also deny that the machinery was ever delivered to them or that they ever accepted the same. For a further answer they deny that said machinery has been attached to or in any manner has become a part of the building or real estate and deny that it constitutes an improvement for which a mechanic's lien can properly be allowed.
After hearing the testimony offered on these issues, the trial court entered a decree in which it is found that plaintiffs were informed of the purpose for which the machinery was desired by defendants and induced defendants to believe that it would do such work, but that in fact it failed to comply with the representations. It was also further found that there was never a completed delivery of the machinery and that defendants never had in fact accepted it. Upon these findings plaintiff's bill was dismissed.
I. The point most insistently urged for a reversal is that the case presented by the record comes within the rule that when a known and described article is ordered of a manufacturer or dealer, then, even though the purchaser states that he desires such article for a particular use or purpose, there is no implied warranty that it will perform the service for which he desires or intends it. The soundness of the rule as applied to an appropriate state of facts is to be admitted. If A applies to a dealer saying that he wishes to buy an engine of a given description and capacity with which to operate a corn-sheller or power-pump or other piece of machinery and the dealer supplies him with the very thing for which he asks, there is, of course, no implied warranty that the buyer will find the engine sufficient for his purpose, for the manifest reason that he obtains precisely what he bargains for and if it does not answer his purpose it is not because of the mistake, default or misrepresentation of the seller but because of his own mistake or lack of judgment as to the engine which would perform the desired service. But if he goes to the manufacturer or dealer describing the kind of work to be done or the result he desires to accomplish and such manufacturer or dealer professes to be able to supply an engine or machinery which will do it, and the buyer is thereby induced to give him an order therefor, then there is a warranty that the machine or thing so furnished is reasonably adapted to the work for which it is procured even though the order particularly defines and describes it.
That the case before us comes within the last mentioned principle rather than the former is not an open question on this appeal. That question was before us upon a former appeal where we had to consider this very issue. See Pew v Karley, 154 Iowa 559, 134 N.W. 529. On the first trial, the court below adhered to the view of the law for which appellant's counsel now contends and refused to admit testimony that plaintiff knew the purpose for which the machinery was required or assured defendants that it would do the work, and held that the express warranty found in the writing that the thing ordered "was of good material and would do good work when properly operated" rendered incompetent the oral evidence offered. Upon the point thus made we there said the trial court ...
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