Westbrook v. Reeves & Co.
| Decision Date | 12 March 1907 |
| Citation | 111 N.W. 11,133 Iowa 655 |
| Parties | A. R. WESTBROOK, Appellee, v. REEVES & COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Wright District Court.-- HON.W. D. EVANS, Judge.
ACTION for breach of warranty, and to recover the purchase price of a threshing outfit consisting of an engine, separator, and necessary attachments. Trial to a jury, verdict for plaintiff in the sum of $ 669.59, and defendant appeals.-- Reversed.
Reversed.
Nagle & Nagle and Carr, Hewitt, Parker & Wright, for appellant.
Kenyon & O'Connor and J. W. McGrath, for appellee.
On or about August 10, 1903, plaintiff purchased of defendant a threshing outfit consisting of an engine, separator, band cutter, weigher, stacker, etc., for the agreed price in the aggregate of $ 3,371.50. The order called for certain machinery, naming it and fixed a price on each article, that is to say, the engine was valued at $ 2,115.60, the separator at $ 645, the band cutter at $ 210, the stacker at $ 250, and other items at smaller amounts. The purchase price was represented by an old threshing outfit taken in exchange at the agreed price of $ 1,575, and by notes in various amounts maturing during the years 1903, 1904, 1905, and 1906, making an aggregate of $ 3,371.50. Plaintiff, according to agreement, paid $ 160 freight upon the property, which was shipped from Des Moines to Ceylon, Minn. The notes for the purchase price were secured by mortgage upon the machinery running to defendant. The machinery was sold under the following warranty:
The machinery order herewith is warranted by Reeves & Co. to be well-made, of good material, and with proper use and management to do as good work as any other machine of the same size manufactured for a like purpose; but if inside of six days from the day of its first use the said machinery fails to fill said warranty, written notice shall be given Reeves & Co. by registered letter, and also written notice to the local agent from whom the same was purchased, stating wherein it fails to fill the warranty, and if it be of such a nature that remedy cannot be suggested by letter, a reasonable time shall be allowed to get to the machinery to remedy the defects, if any there be, and an opportunity offered for a trial thereafter, the purchaser rendering necessary and friendly assistance. Defects or failure in one part shall not condemn any other part or attached machine and if after a fair opportunity to remedy a defect the part or parts containing such cannot be made to fill the warranty that part which fails shall be returned immediately by the undersigned to the place where it was received, with the option in the company to furnish another machine or part in place of the machine or part so returned, or credit the settlement with the same. If Reeves & Co. shall furnish another machine or part in place of the one returned, the terms of this warranty shall be held to have been fulfilled, and the company shall be subject to no further liability under this order. It is hereby expressly agreed that all claims for damages against Reeves & Co. by reason of the nonperformance of the machinery above, are hereby waived. It is mutually agreed that the failure by the purchaser to give said written notice of defects, as above provided, within six days from the day of its first use, or to return the said machinery or part to the place whence it was received, within six days from the day of its first use, shall be conclusive evidence of the fulfillment of the warranty and full satisfaction of the undersigned who agrees to make no claim thereafter against Reeves & Co., or to make any defense to the notes given therefor, on account of any breach of warranty. It is also expressly agreed that if at any time after the expiration of the six days from the date of its first use, Reeves & Co. should furnish to the undersigned any improvements or attachments for said machinery or replace any old part with new, or should the undersigned notify Reeves & Co. in any wise whatever, of any imperfections in said machinery, and if upon receipt of such notice Reeves & Co., or any agent or employe should act thereon and remedy, or attempt to remedy such imperfections, the so doing of all such acts will not extend the liability of Reeves & Co. under this warranty beyond the expiration of the six days from the date of its first use. . . . It is also agreed and understood that no agent or employe of Reeves & Co. (officers of the company not included) is authorized to alter, change, modify, or waive this warranty, or any part thereof, or to make any other or different warranty; or any notice to any agent or employe of Reeves & Co., or any act at any time of any agent or employe, shall not constitute a waiver of the written notices herein provided for, nor a waiver of any other stipulation of this warranty. By the title or name Reeves & Co. in this warranty it is understood to mean Reeves & Co. of Columbus, Ind., only.
Upon arrival of the machinery at Ceylon plaintiff took it to a farm and within two days after its receipt started the engine and separator and operated it for one day. Some days thereafter and on or about September 9, 1903, the machine was removed to another farm, reset and operated for four and one-half days. There were then three other moves and threshing done for as many more people, for one, three and one-half days, for another, one-half day, and for another three and one-half days. Plaintiff claims that he discovered defects in both the engine and the separator during the first day of its operation, and that he immediately wrote defendant both at its home office and at Des Moines of these defects. There is no showing aside from a presumption that the letter addressed to the home office was ever received. Defendant's manager at Des Moines admits that he received at letter from plaintiff under date of August 28, 1903, wherein he, plaintiff, complained of defects in the engine. In answer to this Fleming wrote that these defects would probably cure themselves after use, and requested plaintiff in the event the engine did not work properly to notify him. Plaintiff did not use the machinery after the receipt of this letter until September 22d, and on that day or the next he wired the manager at Des Moines saying that the machine would not work and to send an expert. The manager responded saying their experts were out of town, and that one of their very best men would be sent Monday. He further said: "We can not only make your machine work, but will also stop leaks in boiler."
Pursuant to promise, an expert was sent to remedy the defects in the machine, and this expert put in one and one-half days upon it. There is a dispute in the testimony as to the results of his efforts, but a jury was authorized to find that he did not and could not remedy the defects. Plaintiff also claims that at this time the expert, one Lenhart by name, agreed to take the machine with a crew, and without expense demonstrate that the machinery would work properly. Plaintiff wrote the manager at Des Moines of his arrangement, and in response thereto the manager denied the authority of Lenhart to make any such agreement, but asked plaintiff to notify him when he, plaintiff, was to thresh again, saying that he would arrange to go up when he started the machine. On October 16th plaintiff wrote, notifying the manager as to when he would use the machine, and on the 20th of that month the manager responded that it would be impossible for him to go, but that he had wired one Mason, who was a general salesman, adjuster, and collection agent of the company, to be there. Mason appeared and attempted to remedy the defect, but a jury was authorized to find that he did not succeed. Mason, however, requested plaintiff to continue the use of the machinery, to do the best he could with it, and promised that "they would see the machine was made to work, and that if they did not do so they would take it off his, plaintiff's hands, and he could pull it to the place where he got it." Thereafter and about November 11th, plaintiff received a letter notifying him of the maturity of some of his notes. To this plaintiff responded on the 12th saying that the machine had proved a failure, that he would turn the machine over, and that he demanded the return of his notes and property. The machinery was returned to the place of delivery, as we understand it, and defendant thereafter took and sold it under its chattel mortgage, realizing enough to reduce plaintiff's net indebtedness on the notes to something like $ 493.
The trial court withdrew from the consideration of the jury all defects in any of the machinery save the engine and separator, and the jury found plaintiff was not entitled to recover for defects in the separator. As to the engine there was testimony that the boiler leaked badly, that it was hard to get up steam, was not of the capacity it should have been, that the engine was weak, would not start readily, and that the jacket was burned off. Plaintiff also introduced testimony to show that the engine was worthless. The jury found especially that the engine was defective, and it allowed plaintiff $ 1,163.25 on account of defects therein. The verdict was for this amount less the sum due on plaintiff's notes after deducting the amount realized on foreclosure sale.
Many points are relied upon for a reversal, to some of which we shall give attention. Save for the purpose of determining one or two questions, we may eliminate all testimony as to defects in any of the machinery save the engine, as that was the only matter upon which the jury found for plaintiff. It is, of course, fundamental that a warranty may be upon conditions, and that it may also prescribe remedies...
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