Winney v. Sandwich Manuf'g Co.

• Citation: 53 N.W. 421,86 Iowa 608
• Parties: WINNEY v. SANDWICH MANUF'G CO.
• Decision Date: 25 October 1892
• Court: United States State Supreme Court of Iowa

86 Iowa 608

53 N.W. 421

WINNEY

v.SANDWICH MANUF'G CO.

Supreme Court of Iowa.

Oct. 25, 1892.

Action for damages for the breach of an oral contract of warranty of a harvester bought by plaintiff of defendant. Trial to jury. Verdict and judgment for plaintiff. Defendant appeals. On rehearing.

KINNE, J.

1. The original opinion in this case wlil be found in 50 N. W. Rep. 565. February 28, 1889, plaintiff filed a petition asking damages on an oral contract of warranty made in 1883. An amendment to the petition was filed in March, 1889, alleging that defendant was a foreign corporation; that the contract was made with its agent at Hampton, Iowa; that said agency terminated in 1885, and was never re-established. It pleaded the warranty, the breaches thereof, and that in 1885 defendant agreed to so fix the harvester that it would comply with the warranty; pleaded its refusal so to do; that said agency was terminated immediately thereafter. A demurrer to the petition was sustained, and a substituted petition was filed, which alleged that in 1883 the contract was made with one Coble, then an agent of defendant at Hampton, Iowa; that he ceased to be such agent in July, 1885, and that since that time defendant had never had an agency at said place; that the defendant then was, and ever since continued to be, a nonresident of this state, and plaintiff could not at any time after July 25, 1885, and prior to January 1, 1889, obtain personal service on defendant in this state. Other allegations were made, not necessary to be set out here. A motion to strike the substituted petition was sustained as to a portion not set out herein, and overruled as to the balance. Defendant insists that the motion should have been sustained, because the substituted petition is, in effect, the same as the original petition, to which a demurrer was sustained. One of the grounds of the demurrer was that the cause of action was barred by the statute of limitations.

2. The amended petition alleges that defendant is a foreign corporation, having its principal place of business in and being a resident of Illinois, but it does not aver that it was a nonresident of this state. In the substituted petition it is alleged that defendant was a nonresident of the state, and personal service could not have been had on it in this state after 1885. Although defendant was a resident of Illinois, yet, if it had an agency in this state, it would constitute it a resident of Iowa, so as to authorize the service of process on its agent in an action brought against it. Hence it appears from the allegations of the substituted petition that from 1885 to 1889 no action could have been brought against defendant in this state. The substituted petition, thus showing on its face that the action was not barred, was not vulnerable to a demurrer, and hence the motion to strike was properly overruled, so far as it was based on the defense of the statute of limitations.

3. The sixth instruction given by the court reads thus: “If you shall find from the evidence that the defendant during the year 1883 had an agent and agency at Hampton, Iowa, for the sale of the reapers and binders, and that in July of said year said agent sold to plaintiff the machine in question, then the original notice in this action could have been served upon such agent or his successor in such agency at any time while such agent or his successor retained the agency and authority to sell such machines, or to settle for any damages arising from warranty on the sale of such machines. But if such agency for the sale or management of the reaping and binding machines was revoked and canceled by the defendant and such agent at such agency at any time, then, and in that case, service of the original notice in this action could not have been legally made upon such agent so as to bind the defendant while such revocation and cancellation existed, even though you should find that defendant had still kept an agent or agency there, whose duties were limited to the sale of his repairs and other implements.” Appellant objects to so much of the instruction as is in italics. The instruction seems to mean that service, to be good, would have to be made on an agent engaged in conducting the business out of which the contract arose. To that extent it is correct. Insurance Co. v. Granger, 62 Iowa, 272, 17 N. W. Rep. 504;Philp v. Association, 62 Iowa, 633, 17 N. W. Rep. 903. In some other respects we think the instruction is erroneous, but appellant does not complain of it.

The court also instructed the jury on the theory that defendant might avail itself of the statute of limitations as follows: “If you shall find from the evidence that between the date of the alleged purchase and warranty of the machine in question and the time of the commencement of this action the defendant had one or more general agents located in this state, and that plaintiff knew such facts, or by the exercise of ordinary prudence and diligence he could have ascertained such fact, then, and in that case, you are justified in finding that during the time defendant's said general agents were located in the state, and the plaintiff knew, or by the exercise of ordinary prudence and diligence could have known, such fact, that during such time, for the purpose of this suit, the defendant was a resident of this state. But even though you shall find that during said time or a part of such time the defendant did have a general agent or agents located in the state, but that, owing to such fact not being generally known, plaintiff did not know of it, and by the exercise of ordinary prudence and diligence could have known of it, then, and in that case, the mere fact that defendant did have a general agent or agents in the state would not constitute defendant a resident of this state for the purpose of this action.” Appellant complains of this instruction, for that the running of the statute of limitations is made to...