Nicholas, Shepard & Co. v. Wayman

• Decision Date: 09 March 1887
• Citation: 32 N.W. 258,71 Iowa 160
• Parties: NICHOLS, SHEPARD & CO. v. WYMAN ET AL
• Court: Iowa Supreme Court

32 N.W. 258

71 Iowa 160

NICHOLS, SHEPARD & CO. v. WYMAN ET AL

Supreme Court of Iowa, Des Moines

March 9, 1887

Appeal from Warren Circuit Court.

ACTION in chancery to foreclose a mortgage. There was a decree for defendants. Plaintiffs appeal.

REVERSED.

Smith & Morris, for appellants.

H McNeil, for appellees.

OPINION

BECK J.

I.

The notes secured by the mortgage in suit were executed by defendant John H. Wyman in the purchase of a steam-engine and a separator to be propelled by the engine, and fixtures accompanying each. The defendants in their answer allege that plaintiffs orally warranted the machinery to be perfect, and capable of doing good work, and that the engine would haul the separator, tank, water, and one-half ton of coal, through stubble and over plowed fields, and over all the territory wherein defendant was to use the machines, and to perform other conditions of the warranty. It is further alleged that the machinery failed to comply with the terms of the warranty. The plaintiffs in their reply deny the oral warranty pleaded by defendant, and allege that the machinery was sold upon a written warranty, and no other, which is set out as an exhibit.

II. The preponderance of the evidence shows that there was no oral warranty. Defendant Wyman testifies that there was, but one of the plaintiffs, and the agent who made the sale for them, testify to the contrary.

III. The written warranty is introduced in evidence, and it is shown that the sale was made under it, being embraced in the order which defendant gave for the machinery. It is a well-settled rule, recognized by more than one decision of this court, that where there is a written contract of sale an oral warranty of the thing sold cannot be shown, and when there is a written warranty the vendee cannot show an additional parol warranty. Mast v. Pearce, 58 Iowa 579, 8 N.W. 632; Shepard v. Gilroy, 46 Iowa 193. The evidence fails to show that the agent who defendant testifies warranted the machinery had authority to make such a contract.

IV. We think the evidence fails to show that the machinery did not comply with the terms of the written warranty. The principal ground of complaint made by defendant is that the engine did not possess sufficient power to draw the separator, tank etc. But the written contract contains no warranty to the effect that it could do so. Defendant also claims that it did not possess sufficient...