Loxtercamp v. Lininger Implement Co.

• Decision Date: 09 April 1910
• Citation: 125 N.W. 830,147 Iowa 29
• Parties: HENRY LOXTERCAMP, Appellee, v. LININGER IMPLEMENT COMPANY, Appellant
• Court: Iowa Supreme Court

125 N.W. 830

147 Iowa 29

HENRY LOXTERCAMP, Appellee, v. LININGER IMPLEMENT COMPANY, Appellant

Supreme Court of Iowa

April 9, 1910

Appeal from Carroll District Court.--HON. F. M. POWERS, Judge.

ACTION at law to recover damages for breach of an alleged implied warranty of a manure spreader. Judgment for plaintiff, and defendant appeals.

Affirmed.

B. I Salinger and L. H. Salinger, for appellant.

Lee & Robb, for appellee.

OPINION

WEAVER, J.

At the date of the transaction under inquiry the plaintiff was a retail dealer in farm implements at Carroll, Iowa, and the defendant a wholesale dealer at Omaha, Neb., in like merchandise, including the Kemp manure spreader, manufactured by a concern known as the Richardson Manufacturing Company at Worcester, Mass. Plaintiff gave defendant a written or printed order for a Kemp spreader, in which the only reference to a warranty or representation of quality is in the following words: "We agree to receive the following mentioned below and settle for the same on arrival by notes due as per terms marked below. . . . All goods subject to the warranties published in factory's catalogue and circulars." There is evidence to the effect that the Richardson Manufacturing Company in its advertising literature described the virtues and triumphs of the Kemp spreader in the following terms: "The Worcester Kemp manure spreader has had nearly thirty years of this field experience. Every part has been demonstrated in actual field work; it is strong, simple and mechanically right. It does its work with a certainty that is not disturbed by any possible local conditions. The Worcester Kemp is well built in every detail. Every particle of material has its office to perform, and forms its part of the magnificent whole." The machine was shipped to plaintiff, who, after having it in store for a time, made a tentative sale thereof to one Schwaller for use on a farm. On being tested by Schwaller, it proved to be incapable of doing good work, and was returned to the plaintiff, who, after unsuccessful appeals first to the defendant and later to the Richardson Company to remedy the defects, brought this action for damages, declaring both upon a breach of a written warranty and a breach of an implied warranty of fitness. The defendant answered, admitting the sale of the machine to plaintiff, but denying that it gave the plaintiff any warranty, express or implied, concerning sad machine, and alleging that "whatever warranties, express or implied, were made, if any were made, were not those of the defendant but of the makers of the machine in controversy;" and it further avers that, if any implied warranty did or could have arisen from the sale to plaintiff, yet as it is conceded that such sale was made to him for the purpose of resale, and as he had the machine in his possession for a period reasonably sufficient to enable him to inspect it and ascertain its quality before selling to Schwaller, the office of such warranty had been accomplished, and no action would thereafter lie against defendant for its breach.

At the close of the testimony, the trial court withdrew from the jury the issue upon the alleged express warranty, but submitted the case for a verdict upon the alleged breach of an implied warranty. On this question it instructed the jury in substance that if the machine was ordered for the purpose of resale, and at the time of such order plaintiff had no opportunity to inspect and ascertain the quality of such spreader, the law would imply a warranty that it was reasonably fit for the purpose for which it was designed, and was in a merchantable condition, and that, if on a reasonable trial it proved to be materially defective in the respects named, plaintiff was entitled to recover his damages so sustained. The jury found for the plaintiff.

Stated in brief terms, the position of appellant is that under the circumstances of this case there was no implied warranty in the sale of the machine; or, if such implication did arise, it was fully satisfied and discharged when plaintiff had held it in possession a sufficient time for inspection of its quality and character before making a resale. Was there an implied warranty? We do not understand counsel to deny the proposition that, generally speaking, in an executory contract for sale of personal property when the thing sold is not present for inspection and delivery, or where a dealer undertakes to furnish an article to fill the order of one who buys for resale or for any other known or specified use, a warranty is implied that it is of merchantable quality, and this is ordinarily held to mean or include an assurance that such article (if a product of manufacture) is well made, of good material, and reasonably well fitted for the uses for which it is constructed or furnished. Davis v. Sweeney, 75 Iowa 45, 39 N.W. 174; Russell v. Critchfield, 75 Iowa 69, 39 N.W. 186; Blackmore v. Fairbanks, 79 Iowa 282, 44 N.W. 548; Checkrower Co. v. Bradley, 105 Iowa 537, 75 N.W. 369; Parsons v. Mallinger, 122 Iowa 703, 98 N.W. 580; Bank v. Dutcher, 128 Iowa 413, 104 N.W. 497. In some states the rule may be somewhat narrower than is here stated, but it is too well settled in our own jurisdiction to admit of question.

It is argued, however, that the terms of the written order are such as to exclude any implication of warranty. This position is grounded on the clause, "all goods...