Massillon Engine & Thresher Co. v. Shirmer

• Decision Date: 10 February 1904
• Citation: 98 N.W. 504,122 Iowa 699
• Parties: MASSILLON ENGINE & THRESHER COMPANY, Appellants, v. JOHN C. SHIRMER
• Court: Iowa Supreme Court

98 N.W. 504

122 Iowa 699

MASSILLON ENGINE & THRESHER COMPANY, Appellants, v. JOHN C. SHIRMER

Supreme Court of Iowa, Des Moines

February 10, 1904

Appeal from Kossuth District Court.--HON. W. B. QUARTON, Judge.

Upon rehearing, former opinion reported in 93 N.W. 599 is withdrawn.

SUIT in equity to recover on notes given for the purchase price of a threshing machine outfit, and to foreclose a chattel mortgage given to secure the same. Defense and counter-claim, failure of contract and breach of warranty. There was a judgment for the defendant, from which the plaintiff appeals.

Affirmed.

Clark & Cohenour for appellant.

Bonar & Fellows and Carr, Hewitt, Parker & Wright for appellee.

OPINION

SHERWIN, J.

The threshing outfit purchased of the plaintiff consisted of a second-hand steam engine, for which the defendant agreed to pay $ 1,000, and a separator, a grain weigher, an automatic stacker, a self-feeder, and a water tank, together with a tank, pump, belting, and appliances necessary to properly operate such machinery, for which the defendant agreed to pay the further sum of $ 935; the total purchase price of the outfit being $ 1,935, for which sum the defendant executed his notes before the property was delivered to him. Later the self-feeder was returned to the plaintiff and credit therefor given the defendant on his indebtedness. Payments were made on the notes from time to time by the defendant, aggregating the sum of $ 641.50, and there was also paid thereon the further sum of $ 455 realized from the sale of a part of the mortgaged property, such total payments amounting to $ 1,096.50. The defendant did not rescind the contract of purchase, but he pleaded a counterclaim based upon an alleged breach of the contract of warranty contained in the written orders given by him for the outfit. There is some conflict in the evidence on this branch of the case, but we are thoroughly convinced that a breach of the contract of warranty is fully proven, and that the defendant is entitled to recoup his damages therefor. The contracts of warranty contain the provision that "continued possession or use of the machinery for six days shall be conclusive evidence that the warranty is fulfilled to the full satisfaction of the purchaser, and that he agrees thereafter to make no further claim" on the plaintiff "under the warranty." The contracts also contain the usual agreement for written notice to the seller, and to the agent of whom bought, in case the machinery fails to comply with the warranty, and the usual stipulation that opportunity shall be given the seller to remedy defects, with the friendly assistance of the purchaser.

The machinery was delivered to the defendant either on the 30th or 31st day of July, 1895, and his possession and use thereof continued for two years, at least; but it does not necessarily follow that the provision as to such continued possession and use, or that the stipulation with reference to notice, estops him from relying on the breach of warranty. The defendant's written orders for the machinery were taken by Mr. W. Morley, who was at the time employed by the plaintiff to canvass and make sales of its machinery; to take orders therefor, and make collections for the plaintiff; to go when needed in setting up and starting threshing outfits; and to adjust such outfits when the same were out of repair or not running satisfactorily. He was, in fact, present when the machinery was unloaded from the car and taken to defendant's farm, and assisted and directed the defendant in setting up and starting the same in the afternoon of the day that it reached there. That afternoon the machine did not work well. The feeder shaft broke, and Mr. Morley took it to town, had it repaired, and returned with it the next forenoon. He remained with the defendant until some time in the afternoon of the same day, when he left, saying that he would be back in a couple of hours. He did not return, however, and the defendant attempted to operate the machine without him until the 3d of August, when failing to make it work, he telegraphed the plaintiff's general agent at Council Bluffs, Iowa on the 4th of August as follows: "All of outfit is not here yet. No one to start machine. I shall refuse to take it unless promptly attended to. Answer." This telegram was sent on Sunday, and in response thereto the plaintiff sent an expert, who arrived at Mr. Shirmer's on the next day. He remained with the machine nearly a day. He took charge of it, and...