MacKey v. Swartz

• Decision Date: 17 April 1883
• Citation: 60 Iowa 710,15 N.W. 576
• Parties: MACKEY v. SWARTZ.
• Court: Iowa Supreme Court

60 Iowa 710

15 N.W. 576

MACKEY

v.SWARTZ.

Supreme Court of Iowa.

Filed April 17, 1883.

Appeal from Hardin circuit court.

The plaintiff alleges in his petition that the defendant ordered of plaintiff a fire-proof safe, at the price of $85; that plaintiff shipped to defendant the safe called for by said order; and that defendant has failed to pay the price thereof. The order--a copy of which is set out in the petition--calls for a safe with fancy Japanese painting, bouquets on sides, mortar on outside of door for drug-store, and name on one drawer. The answer, among other things, alleges that the safe delivered does not correspond with the order as to painting, in that there are no bouquets on the sides, and no mortar on the outside door. The reply alleges that the defendant received and accepted the safe without notifying plaintiff of any defects, and without returning or offering to return the safe, and that he thereby waived all defects. The cause same on for trial to a jury, and when the plaintiff's testimony was introduced the court, on motion of the defendant, withdrew the cause from the jury, and rendered a judgment against the plaintiff for costs. The plaintiff appeals. The cause involves less than $100, and is reviewable here only on the questions certified by the trial judge.S. M. Weaver, for appellant.

T. H. Milner and W. V. Allen, for appellee.

DAY, C. J.

The judge recites in his certificate that the plaintiff introduced evidence tending to prove the contract or order as set out in the petition; that upon said order the safe was shipped to the defendant and received by him on or about November 20, 1880; that the safe delivered to defendant was of the name, kind, and description called for by the order, except that there was no evidence as to whether said safe was or was not painted with fancy Japanese painting, bouquets on sides, or mortar on the outside door; that on the twentieth of November and thirteenth of December defendant wrote to plaintiff acknowledging receipt of safe, and that he complained to plaintiff because the safe was not provided with an inside door, and because the wood-work was not properly made, but did not mention or notify plaintiff of any defect in the painting or ornamentation, nor that such painting or ornamentation was not in conformity to the order, and did not return, or offer to return, the safe to the plaintiff. As pertinent to these facts the trial judge certified for our determination five questions of law, all of which, so far as applicable to the issues in this case, are sufficiently answered by our determination of...