Kinkead v. McCormick Harvesting Mach. Co.

• Decision Date: 08 October 1898
• Parties: KINKEAD v. MCCORMICK HARVESTING MACH. CO.
• Court: Iowa Supreme Court

106 Iowa 222

76 N.W. 663

KINKEAD

v.MCCORMICK HARVESTING MACH. CO.

Supreme Court of Iowa.

Oct. 8, 1898.

Appeal from district court, Linn county; William G. Thompson, Judge.

In August, 1896, the plaintiff purchased of the defendant a corn binder, for which he gave his note for $130, which note has been assigned by defendant, and plaintiff is liable for the payment thereof. From the petition it appears that the corn binder was warranted as follows: “These machines are all warranted to be well made, of good material, and durable, with proper care. If, upon one day's trial, the machine should not work well, the purchaser shall give immediate notice to said McCormick Harvesting Machine Company, or their agent, and allow time to send a person to put it in order. If it cannot then be made to work well, the purchaser shall at once return it to the agent of whom he received it, and his payment (if any has been made) will be refunded. Continuous use of the machine, or use at intervals through harvest season, shall be deemed an acceptance of the machine by the undersigned.” It also appears from the petition that plaintiff complied with the conditions of the warranty by making the one day's trial of the binder; that it would not work well; that he afterwards, on its failure to work well, notified defendant's agent, who failed to make the same work as warranted, whereupon he returned the machine to said agents of whom he received it, and demanded a return of the note, which demand was refused. Judgment is asked for the purchase price of the machine. The answer admits the sale, the warranty, and the return of the machine, but denies the averments as to dates. As a separate defense it is pleaded that after the delivery of the machine, and after plaintiff had tried the same, and had full knowledge as to its compliance, or want of compliance, with the warranty, he expressed himself as satisfied with the machine and its workings, and gave his note therefor, and that the transaction was a settlement of all matters pertaining to the sale. The cause went to trial to a jury on the issues thus formed, that returned a verdict for plaintiff, and from a judgment thereon the defendant appealed. Reversed.Preston & Moffit, for appellant.

Giffin & Voris, for appellee.

GRANGER, J.

1. There is a complaint that the court presented to the jury an issue of fact not involved in the pleadings. The plaintiff pleaded as a basis of recovery his purchase of the machine, the warranty thereof, a compliance with the conditions on his part, a breach thereof by defendant, and his liability to pay the note. The answer, by denials, put in issue the allegations as to a breach of the warranty, and a full compliance with the conditions of the warranty by plaintiff, and then, by way of affirmative defense, pleaded a settlement by the giving of the note after knowledge of the workings of the machine. The law operates as a denial of the averments as to settlement. No reply was filed. The issues arising from the denials in the answer were...