Warbasse v. Card

• Decision Date: 12 March 1888
• Citation: 74 Iowa 306,37 N.W. 383
• Parties: WARBASSE ET AL. v. CARD.
• Court: Iowa Supreme Court

74 Iowa 306

37 N.W. 383

WARBASSE ET AL.

v.CARD.

Supreme Court of Iowa.

March 12, 1888.

Appeal from circuit court, Cerro Gordo county; JOHN B. CLELAND, Judge.

Action to recover for a furnace sold. Judgment below was for defendant, and plaintiffs appeal.Sherwin & Schermerhorn and Glass & Hughes, for appellants.

John Cliggitt, for appellee.

SEEVERS, C. J.

The petition states the plaintiff and defendant entered into the following written contract: “MASON CITY, IOWA, August 31, 1882. We agree to furnish, and we agree to pay for, a No. 61 Ruby brick set furnace and covering burrs, delivered at the post-office building of this city, $194.75. The same to be paid for February 1, 1883. Messrs. Warbasse and Lee to furnish man to superintend the setting of the same and guaranty said heater to work successfully, and operate as well as any other first-class furnace under similar circumstances. Mr. Card to furnish brick-work and materials for setting same, and pay Warbasse & Lee a reasonable price for time of workmen while working on same heater.” Performance of such contract on the part of the plaintiff was alleged, and judgment asked. The execution of the contract was denied by the defendant, and, among other things, he pleaded as follows: “That at and prior to the making of said written contract defendant had no knowledge as to the character and capacity of the furnace provided for, or the way to set it; that plaintiffs knew all these matters, and how it should be put up, and defendant was obliged to and did rely on the representations of plaintiffs; that the writings sued on were made by the plaintiffs and signed by the defendant, with the understanding that they did not contain all of the representations, agreements, and guaranties orally made between them, nor of the whole contract, and were not to preclude defendant from showing the complete understanding of the parties that the oral agreements should stand as part of the entire contract; that plaintiffs represented that it would not be necessary to make said contract formal and complete; that defendant could confide in the good faith of plaintiffs to carry out the oral agreements; that defendant had confidence in plaintiffs, and, depending on said representations, signed the contract, but defendant alleges that said representations were fraudulent, and for the purpose of inducing him to accept and sign the imperfect contract; that at or prior to signing said contract, and as part of the contract orally made, plaintiffs orally guarantied that said furnace would be capable of heating all of said rooms in the coldest weather to the temperature of at least seventy degrees, by the use of not exceeding fifteen tons of hard coal during the heating season. That said representations were untrue and fraudulent, and so known to be to plaintiffs.” The court instructed the jury as follows: “(21) If you find from the evidence in this case, and by a preponderance thereof, that the contract and agreement between the parties with respect to the purchase of said furnace in question was by agreement and understanding between them, made partly in the writings introduced in evidence and partly in parol, and that it was understood and agreed that part only of such contract should be reduced to writing, and the remainder remain in parol, with no writing to witness it, such an arrangement would be legal and binding, and such contract, if in this case shown by a preponderance of the evidence, would be binding according to its terms upon the parties thereto. (22) You are instructed that if you find from the evidence that there was a contract partly in writing and partly verbal, and further find that the furnace in question, being properly operated, did not comply with and fulfill the terms of such partly written, partly verbal, contract, as alleged, and the defendant notifi...