Robinson & Co. v. Berkey

• Decision Date: 10 December 1896
• Citation: 100 Iowa 136,69 N.W. 434
• Parties: ROBINSON & CO. v. BERKEY ET AL.
• Court: Iowa Supreme Court

100 Iowa 136

69 N.W. 434

ROBINSON & CO.

v.BERKEY ET AL.

Supreme Court of Iowa.

Dec. 10, 1896.

Appeal from district court, Johnson county; M. J. Wade, Judge.

On the 5th day of May, 1893, the defendant firm made a written order to the plaintiff company for a thresher, self-feeder, and band cutter, and a Perfection weigher, at the agreed price of $825, for which the plaintiff was to receive in exchange another thresher, stacker, weigher, and sieve; the property so taken in exchange being valued at $375. For the remaining $450 the defendant was to give two notes, each for $225, due January 1, 1894 and 1895. To the order is attached a warranty that the thresher is well made, of good materials, and that with proper management it will do as much and as good work as any other of similar size made for the same purpose. On the same day defendant made another written order to the plaintiff for a Farmer's Friend straw stacker, to be attached to the thresher, for the agreed price of $250, for which two notes, of equal amount, were to be given, due at the same time as the others. To this order was also attached a warranty that may be hereafter noticed. The following is a part of the warranty attached to the first order: “Conditioned that, if inside of ten days from the day of the first use of the said machinery, it shall fail to fill the warranty, written notice shall be given immediately by the purchaser to Robinson & Co., at Richmond, Indiana, by registered letter, and written notice also to the local agent through whom the same was received, stating particularly what parts and in what way it fails to fill the warranty, and a reasonable time allowed the company to get a man or men to the machine, and remedy defects, if there be any (if it be of such nature that a remedy cannot be suggested by letter). The purchaser also to render all necessary and friendly assistance and co-operation in making the machinery a practical success. If any part of the machinery cannot thus be made to fill the warranty, that part shall be returned by the purchaser to the place where it was received, and the company shall either furnish another machine, part, or attachment, which shall perform the work, or return the money and notes which it received for the machine, or give credit for the amount received for the part or attachment which may have failed to fill the warranty, and thereby be released from any further liability herein.” The machinery under both orders was delivered, and the notes, as agreed upon in both orders, were made and placed in the hands of R. L. Dunlap, who was plaintiff's agent at Iowa City. The property to be given in exchange was never given to plaintiff, and the defendant by injunction proceedings prevented the delivery of the notes by Dunlap to plaintiff, because of which this action is brought to recover the sum of $1,075, the agreed price for the machinery under the two orders. The defendant firm, as such and as individuals, admit the above facts, as well as others that may be noticed in the opinion, and plead, by way of defense, a breach of the warranties in the orders, and that upon a failure of the plaintiff to make the machinery do work as warranted, they rescinded the contract of sale, and offered to return the machinery, which was refused; and they then enjoined the delivery of the notes to plaintiff to avoid their passing into the hands of innocent purchasers, and to enforce their right of rescission. There was a verdict for the defendants, and from a judgment thereon the plaintiff appealed. Reversed.Remley & Ney, for appellant.

Baker & Ball and Joe A. Edwards, for appellees.

GRANGER, J.

1. The following is a part of the contract of warranty in the first order: “Failure to settle for the machinery at the time and place of delivery * * * shall be a waiver of the warranty, and release the warrantor, without in any way affecting the liability of the purchaser for the price of the machinery or the notes given therefor.” Appellant claims that the neglect of the defendants to deliver the old machinery, and their action in stopping the delivery of the notes to plaintiff, is a waiver of the warranty, and hence that no advantage can be taken of it to defeat a recovery. It relies on Davis v. Robinson, 67 Iowa, 355, 25 N. W. 280, which case was again appealed and reported in 71 Iowa, 618, 33 N. W. 132. It is not to be doubted, on the authority of that case, that, if there was a failure to settle by the delivery of the old machinery and the giving of the notes, it waives the warranty, the breach of which is defendant's only defense, and plaintiff should recover, unless defendant pleads and establishes a legal excuse for not so doing. In the answer defendants admit the failure to deliver the machine, and that, as we view it, is the practical effect of their plea as to the notes. So that, unless they plead and establish an excuse for the failure, the warranty is waived. It is contended in argument that this is done, and the following appears in the answer: “They admit that they executed their promissory notes and left them with one R. L. Dunlap, and that they afterwards procured a temporary injunction restraining Dunlap from delivering the same to the plaintiff. * * * Further answering the said first count, they admit that they refused to deliver to plaintiff the said 33-inch cylinder Roberts, Thorp & Company thresher, the Reeves stacker, the Perfection weigher, the oats and timothy sieves; but they deny that they have continued to use the same, and aver that they have only refused to deliver, as they refused to deliver the said notes,--that is, until the said new outfit by them purchased should be made to comply with the warranties given by the plaintiff in making the sale thereof; and they say plaintiff agreed thereto.” We assume that it would not be contended that the...