Warder v. Robertson

• Decision Date: 22 October 1888
• Parties: WARDER ET AL. v. ROBERTSON.
• Court: Iowa Supreme Court

75 Iowa 585

39 N.W. 905

WARDER ET AL.

v.ROBERTSON.

Supreme Court of Iowa.

October 22, 1888.

Appeal from district court, Jones county; JAMES D. GIFFIN, Judge.

Action on two promissory notes. Answer that the notes sued on were given for the price of a combined reaper and mower, which was sold to defendant by plaintiffs with a warranty which had failed, in consequence of which the machine was worthless, and the consideration of the notes had wholly failed. Verdict and judgment for defendant. Plaintiffs appealed.E. Keiler, for appellants.

Jamison & Mellett, for appellee.

REED, J., ( after stating the facts as above.)

The machine for the price of which the notes were given was sold with the following warranty: “This machine is warranted to be of good material, and well made; and if a single reaper, and properly operated, will cut from 10 to 15 acres of grain per day; or if a combined machine, and properly operated, will cut from 10 to 15 acres of grass per day, with two horses and a driver, (and if a self raker, to do its own raking as well as can be done by hand; and if a dropper, as well as any other dropper,) and cut any kind of grass as well as any other combined machine; and if a single mower, and properly operated, will cut as many acres of grass per day, with two horses and a driver, and cut any kind of grass, as well as any single mower of the same size. It is understood that this warranty is in valid and of no effect unless the machine is properly set up and operated, as per our directions. If said machine does not perform as above warranted, notice must be given to Warder, Bushnell & Glesser, Chicago, Ill., subject to a second trial in their presence; when, if the failure is found not to have arisen from any defect in the machine, it shall be kept by the purchaser, and continued use shall be conclusive proof that it fills the warranty. But, if on said second trial said machine does not work as above, it may be returned to us, and the money will be refunded.” On the margin of the paper on which the warranty was printed appeared the following: “Not valid unless countersigned by J. M. Paul, agent, without addition or erasure.” The sale was made by Paul, and he delivered the warranty to defendant at the same time the notes were executed. Defendant had received the machine before that, and had set it up and used it in cutting some grass, but it did not work satisfactorily. On the day before that on which the notes were executed Paul took the machine to the field of a neighbor of defendant, and set it up, and gave it a trial in cutting oats; but defendant was not present at the trial. After Paul left, defendant used it for three days in the same field, but found difficulty in making it work. He afterwards cut 10 acres of grass with it for another neighbor; also some grain and grass for himself, but it worked badly all of the time. He notified Paul twice during the time of the trouble he was having with the machine, but the latter did not go to see it, or witness any trial of it. He, however, on one occasion, gave defendant some “extras” to replace parts of it which, owing to the manner of...