J. L. Owens Co. v. Leland Farmers' Elevator Co., 35404.

• Court: Iowa Supreme Court
• Writing for the Court: FAVILLE
• Citation: J. L. Owens Co. v. Leland Farmers' Elevator Co., 198 Iowa 271, 198 N.W. 19 (Iowa 1924)
• Decision Date: 01 April 1924
• Docket Number: No. 35404.,35404.
• Parties: J. L. OWENS CO. v. LELAND FARMERS' ELEVATOR CO.

198 Iowa 271

198 N.W. 19

J. L. OWENS CO.

v.LELAND FARMERS' ELEVATOR CO.

No. 35404.

Supreme Court of Iowa.

April 1, 1924.

Appeal from District Court, Winnebago County; C. H. Kelley, Judge.

Action to recover the purchase price of a grain-cleaning machine sold by plaintiff to the defendant under a written contract. The defendant pleaded that express and implied warranties had been breached, and that the contract had been rescinded. The cause was submitted to a jury, which returned a verdict for the defendant. The plaintiff appeals. Affirmed.Tom Boynton, of Forest City, and Francis B. Hart, of Minneapolis, Minn., for appellant.

Thompson, Loth & Lowe, of Forest City, for appellee.

FAVILLE, J.

On September 30, 1918, appellee signed a written contract for the purchase of a certain grain-cleaning machine from appellant, at the agreed price of $775, appellee to pay the freight thereon. The machine was shipped and installed in appellee's elevator in December, 1918. Certain tests were made of the machine thereafter, and appellee refused to accept the same. Suit was subsequently brought to recover the purchase price under the contract. The defendant filed a counterclaim for freight paid. Judgment was rendered for recovery under the counterclaim, and plaintiff appealed, and the case was reversed by this court. Owens Co. v. Leland Farmers' Elev. Co., 192 Iowa, 771, 185 N. W. 590. Upon the retrial of the case the transcript of the evidence upon the first trial was used by both parties, and the facts of the case as set out in the opinion of this court on the former appeal are substantially the same as disclosed upon a retrial, and it is unnecessary that we detail them at length in this opinion.

[1] I. It is contended that the court erred in permitting appellee to introduce in evidence the transcript of the evidence of witnesses upon the former trial. Appellant's contention is that the witnesses whose evidence was so introduced were within the jurisdiction of the court, and were within the reach of a subpœna; that in fact they resided in the same county in which the case was being tried; and appellant contends that under such circumstances the testimony of said witnesses, as shown in the official transcript, cannot be introduced in evidence on retrial.

It appears from the record that none of said witnesses were present in the courtroom in attendance upon the trial at the time their testimony was offered from the transcript.

Code Supp. 1913, § 245a, provides that a transcript duly certified by the official court reporter--

“when material and competent, shall be admissible in evidence on any retrial of the case or proceeding in which the same were taken, and for purposes of impeachment in any case, and shall have the same force and effect as a deposition, subject to the same objections so far as applicable.”

Appellant's specific objection at this point is that, the action being at law and the witnesses being residents of the county in which it was tried, the deposition of the witnesses would not be available to appellee, and that the statutory provision that the transcript shall have “the same force and effect as a deposition” does, under such circumstances, necessitate that it be excluded.

We do not think that section 4686 of the Code, providing for certain conditions under which a deposition may be taken is to be applied to transcripts of evidence under Code Supp. 1913, § 245a. The statute does not provide that the transcript may be used only under conditions when a deposition could be taken and used, but it does in terms provide that the transcript is admissible in evidence and that it has the force and effect of a deposition. Under this statute, the rule that the official transcript of the evidence of a witness who testified at a former trial is admissible in evidence when the witness is not present in court has been repeatedly recognized by this court. Lanza v. Quarry Co., 124 Iowa, 659, 100 N. W. 488;Fitch v. Traction Co., 124 Iowa, 665, 100 N. W. 618;In re Will of Wiltsey, 135 Iowa, 430, 109 N. W. 776;Van Norman v. Modern Brotherhood of America, 143 Iowa, 536, 121 N. W. 1080;Emery & Co. v. American Ref. Tr. Co., 193 Iowa, 93, 184 N. W. 750. The cases cited illustrate the application of the rule.

We do not find error at this point.

[2] II. The grain cleaner in question was shipped by appellant and installed in appellee's place of business. Attempts were made thereafter to test the machine, which are described in the opinion of the court on the former appeal.

It developed upon the present trial that after appellee had refused to accept the machine, and shortly before the first trial of the case, appellee operated the machine for a short time one day, in the presence of appellee's counsel, for the sole purpose of enabling the counsel to observe its operation as a preparation for the trial of said cause. It is now argued upon appeal that this limited use of the machine, for this avowed purpose, constituted an acceptance of the machine by appellee, and that appellee cannot now be heard to rely upon its refusal to accept the same or to claim rescission of the contract of purchase.

Was the use of the machine, in the manner and under the circumstances and for the purpose shown, either an acceptance of the machine by appellee or a waiver of its right to rescind for breach of contract? It is an elementary rule that acceptance and use of a purchased article is inconsistent with a claim of rescission. The very basis of rescission is the restoration of the status quo, and this is inconsistent with the continued use by the vendee of the purchased article. But whether a use of the article is an acceptance of the same so as to prevent the vendee from rescinding and binds the vendee to the payment of the purchase price is largely a matter of intent, to be determined from the facts and circumstances of the transaction. Whether the use of a purchased article to any extent and to any degree constitutes a legal acceptance of the article must of necessity be gathered from the facts and circumstances surrounding such use, the purpose of the use and the intent of the vendee in so using. The use in the instant case was made after appellee had rescinded the contract and rejected the machine and refused to pay therefore. It does not come within the class of cases where the use is preliminary to the acquiring of sufficient knowledge on the part of the vendee in order for him to determine the facts with regard to the purchased article so that he may decide to accept or reject the same. Such preliminary use is frequently contemplated or provided for in the contract of purchase. Nor does the case come within the class where, after delivery of an article, upon use it is discovered that the same is faulty or fails to comply with representations or warranties, and the purchaser, under an executory contract, rescinds the same and restores the status quo. In this case the testing and experimentation with regard to the use and adaptability of the machine had been had and appellee had rejected the same, and had repudiated and refused to be bound by the contract, and had definitely rescinded the same. Appellant had left the machine, however, in the custody of appellee. Appellee could doubtless have withdrawn its previous rescission and elected to accept the machine. It could have done this in a formal manner by a statement or declaration to that effect. It could likewise have done so by its acts, if such acts were inconsistent with its right to rescind and if they evidenced an acceptance of the machine on its part.

In this case the only act which it is now claimed constituted such acceptance was the operation of the machine for a brief time, for the sole purpose of advising appellee's counsel as to the manner in which the machine was designed to work, in order that he might more intelligently present appellee's case at the trial. There is no claim that this use of the machine was in any way connected with appellee's business, or that it was even an experimentation on the part of appellee with regard to its manner of working, or an attempt to determine whether it complied with the warranty. Surely, it could not be contended that it would be an acceptance of the machine that appellee and its counsel should examine the machine and look it over and inspect its...