P. P. Mast & Co. v. Pearce

Decision Date09 June 1882
Citation12 N.W. 597,58 Iowa 579
CourtIowa Supreme Court
PartiesP. P. MAST & CO. v. PEARCE & COWAN.


Appeal from Hardin circuit court.

Opinion on rehearing.

*597Porter & Moir, for appellants.

Huff & Reed and S. M. Weaver, for appellees.


At a former term a rehearing was ordered in this cause, and it has been again argued.

1. Counsel for defendants insist that the rule announced in the foregoing opinion, to the effect that the parol evidence of a warranty was erroneously admitted by the court below, is in conflict with authorities which he cites in support of his position. Scott v. Sweet, 2 G. Greene, 224;Chapin v. Dobson, 78 N. Y. 74;Koop v. Handy, 41 Barb. 454;Poulton Coal Co. v. McShain, 75 Pa. St. 238; Merriam v. Field, 24 Wis. 640;Hahn v. Doolittle, 18 Wis. 196;Lewis v. Seabury, 74 N. Y. 410;Chalfant v. Williams, 35 Pa. St. 212; Miller v. Fitchthon, 31 Pa. St. 252; Nuga v. Jacobs, 7 Hun, 220; Herman v. Oxley, 22 Wis. 519; Pearson v. Bank of Metropolis, 1 Pet. 89;Baker v. Prentiss, 6 Mass. 430;Davenport v. Mason, 15 Mass. 82;Christ v. Diffenback, 1 S. & R. 464;Stoops v. Smith, 100 Mass. 63. We have examined all of them, and find but one (Chapin v. Dobson, 78 N. Y. 74) which may fairly be claimed to recognize the doctrine contended for by counsel. Prior New York decisions are in harmony with the rule we adopt. See Ostrander v. Reed, 1 Wend. 424;Munford v. McPherson, 1 John. 414.

Scott v. Sweet, 4 G. Greene, 224, is relied upon by defendant's counsel. It is held therein that in an action upon a promissory note it is competent to show as a defence that the note was given under a parol contract for the right to make fanning-mills, which plaintiff warranted to do good business. The court rightly held the evidence competent to show a failure of consideration of the note. But it is remarked in the opinion that “if the contract was shown to be in writing, we think it was competent for defendants to show, by parol evidence, that the plaintiff, independently of the written transfer, has warranted the mill to work well,” etc. The fact upon which this observation is based was not in the case, for--as we have before stated--the contract, the breach of which was set up in the answer, rested in parol. It was not necessary, for the decision of the case, to announce the doctrine of the quotation, which, therefore, must be regarded as dictum. An examination of the other cases cited by defendant's counsel reveals the fact to be that they are not applicable to the question under consideration. In support of our decision in this case, see authorities cited by Parsons & Benjamin, in the pages referred to in the foregoing opinion. See, also, Jollepp v. Collins, 21 Mo. 338;Reed v. Wood, 9 Vt. 285;Lamb v. Croffs, 12 Wis. 353. See, as bearing upon this point, Shepherd v. Gilroy, 46 Iowa, 193.

2. The defendants in their answer not only relied upon a parol warranty of the cultivator, but in a separate count set up an implied warranty, on the ground that plaintiffs were the manufacturers of the machines, which defendants had no opportunity to inspect prior to the purchase. The circuit court *598instructed the jury that the warranty relied upon by defendants “must have been expressly made,” and that “there is no warranty implied from the transaction in evidence.” The abstract does not show that there was an exception taken by defendants to this instruction. They now insist that the verdict and judgment may be supported upon the facts and rules of law relied upon...

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  • Black v. The North Dakota State Fair Association for Grand Forks
    • United States
    • North Dakota Supreme Court
    • 22 Marzo 1917
    ...Laws 1913, §§ 5889, 5938; C. L. 1913; 2 Elliott, Contr. § 1635, p. 949; Mast v. Pearce, 58 Iowa 579, 43 Am. St. Rep. 125, 8 N.W. 632, 12 N.W. 597; Nichols Wyman, 71 Iowa 160, 32 N.W. 258; Warbasse v. Card, 74 Iowa 306, 37 N.W. 383; Brintnall v. Briggs, 87 Iowa 538, 54 N.W. 531; Jolliffe v. ......
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    • U.S. Court of Appeals — Eighth Circuit
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    ... ... Co., 35 C.C.A. 68, ... 71, 92 F. 873; Franklin v. Browning, 54 C.C.A. 258, ... 117 F. 226; Wilson v. Deen, 74 N.Y. 531, 534; ... Mast v. Pearce, 58 Iowa, 579, 8 N.W.632, 12 N.W ... 597, 43 Am.Rep. 125; Phillips v. Iola Portland Cement Co ... (C.C.A.) 125 F. 593, 596; McQuaid v ... ...
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    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 5 Enero 1910
    ... ... relied upon by appellant, among which are Warbasse v ... Card, 74 Iowa, 306 (37 N.W. 383); Mast v ... Pearce, 58 Iowa, 579 (8 N.W. 632, 12 N.W. 597, 43 ... Am.Rep. 125); and Nichols v. Wyman, 71 Iowa, 160 (32 ... N.W. 258).' ... [175 F ... ...
  • Smith v. Bradley
    • United States
    • North Dakota Supreme Court
    • 19 Mayo 1914
    ...v. Thornton, 43 Me. 226, 69 Am. Dec. 56; Shepherd v. Gilroy, 46 Iowa 193; Mast v. Pearce, 58 Iowa 579, 43 Am. Rep. 125, 8 N.W. 632, 12 N.W. 597. cannot be hypothecated upon mere inference or speculation. Barron v. Northern P. R. Co. 16 N.D. 277, 113 N.W. 102. The contract itself must furnis......
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