Wetter Bros. v. Otto
| Decision Date | 04 April 1917 |
| Docket Number | No. 31294.,31294. |
| Parties | WETTER BROS. v. OTTO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Calhoun County; M. E. Hutchinson, Judge.
Action for the price of a corn binder resulted in the verdict for plaintiff. On motion of the defendant, the verdict was set aside and a new trial ordered. The plaintiff appeals. Reversed.Gray & Gray, of Rockwell City, for appellant.
Frick & Frick, of Rockwell City, for appellee.
The plaintiff is a partnership, composed of Charles H. and E. W. Wetter, and sues for $135, the purchase price of the corn binder alleged to have been sold to the defendant about August 5, 1914. The defendant admitted in his answer that he negotiated for the binder at the price stated, but alleged that it was agreed between the parties that if the binder “did not run so as to give entire satisfaction to defendant, he, the defendant, would not be required to settle for it at all or pay anything for it,” that he hauled the binder to his farm and gave it a trial, that it ran heavily and did not give satisfaction, that upon assurances from plaintiff that he would not be required to settle for it unless it ran to defendant's satisfaction, he continued to try the binder, that plaintiff promised to have an expert examine it, but the expert did not come, and finally the plaintiff advised him that unless the expert appeared by a certain day he should return the binder, and, as said expert did not appear, the binder was returned. The evidence on the part of the plaintiff tends to show that the sale was made as alleged in the petition, but with a guaranty that it would work and that on the part of the defendant tended to sustain the allegations of the answer. The verdict was for plaintiff as prayed. On motion it was set aside and a new trial ordered on the grounds that it was: (1) Contrary to law; (2) contrary to the sixth instruction, and that the court erred in giving the seventh, eighth, and ninth instructions. The sufficiency of the evidence to support the verdict was not questioned, and if the verdict was contrary to the law, it was because of one or more of the instructions referred to being erroneous. The objections interposed to the seventh instruction are that:
(1) “It conflicts with instruction No. 6, which stated the correct rule of law;” and (2) “the rule laid down in instruction 7 would be the rule if both parties agreed to the contract, but here plaintiffs are required to establish the contract as alleged by them as correctly stated in instruction 6, and if they have not established that contract by preponderance of the evidence, then the jury need not inquire further.”
Because of these objections instruction No. 6 may be set out: Under the claim as made by the plaintiffs in this case their cause of action is based upon an alleged oral contract by which they allege that the binder in question was delivered to the defendant under no conditions otherwise than that the binder was guaranteed to work, and if you find such matters to be established by a preponderance of the evidence, your verdict will be for plaintiffs. But if you find that such matters have not been established by a preponderance of the evidence, your verdict will be for defendant.
[1] Notwithstanding the concessions of counsel to the contrary, we do not regard this instruction as accurate. The evidence was such that the jury might have found there was no guaranty that the binder would work and, if not, the omission would not be good ground for denying plaintiff the right to recover. The making of such a guaranty was not essential to recovery.
[2] In this respect instruction 6 was erroneous, but more favorable to defendant than he was entitled to have it. If, then, the other instructions were correct expressions of the law, even though submitting issues which would seem to have been excluded by the erroneous statement of another alleged issue in paragraph 6 of the charge there was no error of which defendant might complain.
II. The court told the jury in the seventh paragraph of the charge that:
Should you find that the agreement between the parties was to the effect that the defendant should take the binder to his premises and give it a trial and pay for it if it proved to be satisfactory to him, and that if it did not prove satisfactory to him he was not to pay for it, then in such event it was the duty of the defendant to give the corn binder a reasonable trial in good faith, and if upon such trial you find that the defendant was honestly dissatisfied with the work of the binder, he would not be legally liable for the purchase price thereof. Under such circumstances the purchaser is required to exercise honesty and good faith, and if he is not satisfied under such conditions, he cannot be held liable even though he may not have been reasonable in his exactions which he made with respect to the work of the machine contracted for.
[3] This submitted defendant's version of the agreement. It was not claimed by him that more than one contract was made as seems to be assumed by appellee, but that the terms of the only contract entered into were different than testified by plaintiff's witnesses. The answer so pleaded and such pleading, notwithstanding appellee's exception, has the approval of this court. Lemke v. Franzenburg, 159 Iowa, 466, 141 N. W. 332;Miller v. Miloskowsky, 153 Iowa, 135, 133 N. W. 357;Cook v. Smith, 54 Iowa, 636, 6 N. W. 259, 7 N. W. 16.
[4] That there was a contract of purchase no one disputes. Were the terms as claimed by plaintiff or as testified to by the witnesses of defendant? Even if as defendant alleged, this alone would not defeat recovery by plaintiff. See above cases. Though settlement were to be made only upon the machine working to defendant's satisfaction, he might have been satisfied or, if dissatisfied, might not have so asserted in a reasonable time, or, notwithstanding dissatisfaction, he might have accepted it. In any such event plaintiff would have been entitled to recover according to the doctrine of the decisions cited.
[5] Another criticism is that the issue of good faith in defendant's alleged dissatisfaction was not pleaded. This was not necessary; for, in interposing his dissatisfaction with the binder as a reason for not accepting it, such dissatisfaction must in fact have existed. If it were feigned as an excuse, or subterfuge to evade an obligation, and defendant in fact was satisfied with the machine, though ruing his contract, then the defense must have failed. Every plea of dissatisfaction under a contract, making satisfaction of the purchaser a test of compliance with...
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