McCormick Harvesting Mach. Co. v. Brower

• Decision Date: 26 May 1893
• Citation: 55 N.W. 537,88 Iowa 607
• Parties: MCCORMICK HARVESTING MACH. CO. v. BROWER.
• Court: Iowa Supreme Court

88 Iowa 607

55 N.W. 537

MCCORMICK HARVESTING MACH. CO.

v.BROWER.

Supreme Court of Iowa.

May 26, 1893.

Appeal from district court, Dallas county; J. H. Appelgate, Judge.

Action against defendant for the price of a harvester. Defense, breach of warranty. Jury trial. Verdict and judgment for defendant. Plaintiff appeals.Kauffman & Guernsey and D. W. Woodin, for appellant.

White & Clark, for appellee.

KINNE, J.

1. July 3, 1889, defendant entered into the following written contract: “McCormick Harvesting Machine Company will ship for the undersigned on or before July 10, 1889, one of their latest improved 5-foot H. binders, including the usual extras, consigned to the care of G. M. Armfield, at Redfield, the undersigned agreeing to pay the McCormick Harvesting Machine Company $130 cash, with interest thereon at the rate of _____ per cent. per annum from date until due, and at the rate of ______ per cent. thereafter until paid. 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 return it at once 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. Dated the 3d day of July, 1889. Post office, Adel; county, Dallas; state, Iowa. D. M. Brower.” Plaintiff claims that the machine in all respects conformed to the requirements of the contract; that delivery of it was made thereunder; and that it was received and accepted by the defendant, and he refused to pay therefor. Defendant admits the purchase of the machine, the execution of the written contract, and that he has not paid for the machine. He avers that the machine was purchased of plaintiff through George Armfield, its agent at Redfield, Iowa. He sets out the contract, and alleges that when the machine was delivered to him it was set up by plaintiff by its agent, George Armfield, assisted by one Charles Armfield, an employe of George Armfield. That the latter attempted for about 12 hours to make the machine work well, but was unable to do so, and it did not work well, and said agent left defendant, knowing that the machine did not work well. That when he left, defendant notified him that the machine did not work well; that he would not keep it and pay for it if he or plaintiff did not make it work properly,--and requested him to notify said George Armfield, plaintiff's agent, of these facts, and to furnish a suitable person to make the machine work properly. That he then and there asked Charles Armfield to make said machine work well. That the latter told defendant if he would continue to use the machine it would work all right. That he refused to remain and fix the machine so it would work properly, but promised to come back in a day or two, and make the machine work well. That, as requested by plaintiff's agent, he did retain the machine for about four days, and used every effort to make it work well, but was unable so to do. That plaintiff, though notified in accordance with the terms of the contract, that the machine failed to work well, neglected to fix the same. That defendant notified George Armfield, plaintiff's agent, that the machine was defective in material and construction, and would not work well, and offered to return same, but said agent requested defendant to retain it where it was; that he would have it boxed up, and shipped to plaintiff; and then agreed to receive the machine of defendant on his premises. Avers that it was not well made and of good material, and durable with proper care, and that it did not work well upon one day's trial. Defendant particularly complains that the machine was of excessive draught; that it would not elevate the grain well, would not bind properly, and otherwise would and did not work well.

2. Appellant claims that the warranty was all embraced in the provision that “these machines are all warranted to be well made, of good material, and durable with proper care.” This, it occurs to us, is too narrow a view of the contract. It expressly provides for returning the machine after one day's trial, if it does not “work well,” and notice is given, and an opportunity afforded plaintiff to send some one to put it in order. That the machine would “work well” was just as much a part of the warranty as that it was made of good material. Nor was it incumbent on defendant to prove wherein it was not well made. He was not a mechanic or a manufacturer. He had a right to rely upon the contract that it “would work well,” and if defendant, in operating the machine, exercised reasonable care and skill in an honest effort to make it work properly, and if the condition of his grain and ground was such as not to prevent it from working well, and it would not do so, then there was a breach of the warranty.

3. Appellant complains of the court's refusal to give the following instruction: “The defendant claims a breach of warranty in the contract in suit. The contract in question warrants the machine in question to be well made, of good material, and durable with proper care. The warranty that the machine is well made, of good material, implies a warranty that it will do good work. This, however, does not mean that the machine in question was warranted to do good work under any and all conditions. It means that the machine in question will not, on account of poor material, or on account of being poorly made, fail to do good work, when operated by a person of reasonable skill and intelligence, and under average conditions as to ground and grain. To show a breach of warranty in this cause the defendant must make it appear by a fair preponderance of the evidence that the machine in question failed to do good work when operated by a person of ordinary skill in such matters, under average conditions as to ground and grain; and, further, that this failure was caused by some defect in the machine growing out of the fact, if such you find the fact to be, that this machine was not well made, of good material.” In the form presented, we think this instruction was properly refused. It is...