McCormick Harvesting Mach. Co. v. Brower,

• Court: United States State Supreme Court of Iowa
• Writing for the Court: DEEMER
• Citation: 94 Iowa 144,62 N.W. 700
• Decision Date: 04 April 1895
• Parties: MCCORMICK HARVESTING MACH. CO. v. BROWER.

94 Iowa 144
62 N.W. 700

MCCORMICK HARVESTING MACH. CO.
v.
BROWER.

Supreme Court of Iowa.

April 4, 1895.

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

Action at law to recover the purchase price of a binder. Defense, breach of warranty and failure of consideration. Trial to a jury, and, at the conclusion of defendant's testimony, the court directed a verdict for plaintiff, and defendant appeals. Reversed.

[62 N.W. 700]

White & Clarke, for appellant.

D. W. Woodin and N. T. Guernsey, for appellee.

DEEMER, J.

This case has once been before this court. See 55 N. W. 537. The contract upon which plaintiff predicates its action is there set out, and need not be repeated here. After the case was remanded to the district court, the defendant reformed his answer, and pleaded that plaintiff, through one Charles Armfield, who was then acting for George Armfield, the agent of the plaintiff, waived notice of the failure of the machine to work well after one day's trial, and verbally agreed to come back in a few days after full trial of the machine had been made, and would make the machine work well, and that, relying upon this promise, defendant did not give any other notice to George Armfield of the failure of the machine to work until about four days after he received it; that he then notified George Armfield of the failure of the machine to work, and offered to return the machine; but that Armfield requested defendant to retain it where it was, and that he (Armfield) would have it boxed up and shipped to plaintiff, and then and there agreed to receive the machine where it was, and waived the return thereof to plaintiff. He also alleged that the machine was not made of good material, and did not work well; was of excessive draught, and failed to properly elevate the grain; that the binder would not work during a great portion of the time; and that the elevator clogged,--of all of which plaintiff had notice. In a second count to his answer, defendant repeated all the foregoing matters of defense, and further alleged that the machine was wholly worthless, and that the consideration for the contract had wholly failed. In a third count defendant pleaded a counterclaim, alleging that, if the machine had been as represented, it would have been worth the purchase price, but that as it was it was worth nothing, and that defendant was damaged on account thereof the sum of $200, and lost time and grain by reason of the failure of the machine to work, of the value of $100. The second count of the answer was stricken out on motion as irrelevant and immaterial matter, and to the third count a demurrer was sustained, and to each of these rulings defendant excepted.

2. The second count of the answer realleges

[62 N.W. 701]

the warranties and defects, and further asserts that the machine was wholly worthless, and of no value for any purpose whatever, and that the consideration for the contract has wholly failed. It is insisted by appellant that this presents a good defense to the suit, for the reason that the warranty is an absolute one, and the provisions relating to notice and return of the machine simply qualified appellant's right to rescind and return the machine in case of breach, and did not destroy his right to defend for an entire failure of consideration. This presents a question on which there is much diversity of opinion. It is the doctrine of some of the cases that, in the absence of fraud or warranty in the sale of personal property, it is no ground for defeating the action that the article proves so defective in quality as to be worthless. Hunting v. Downer (Mass.) 23 N. E. 832;Bryant v. Pember, 45 Vt. 490;Mason v. Chappell, 15 Grat. 572. Other cases announce the rule that if the article is wholly worthless, and is of no value to either party, there is an entire failure of consideration,...