90 Iowa 288 | Iowa | 1894
I. 'This cause was placed on the docket of the district court in April, 1889, and came on for trial on the fifteenth of February, 1892. On the day following, the court permitted the defendants to file a substituted answer for one count of the answer, filed February 15, 1892, which, it appears, was also a substituted answer. Complaint is made of the action of the court in permitting it to be filed. The answer thus filed pleaded additional payments in the sum of five hundred and forty-five dollars. The court, in permitting it to be filed, gave to plaintiff an opportunity to make a showing for a continuance if taken by surprise by the filing of the pleading. We assume that upon a showing that made it doubtful, even, whether plaintiff was able to properly proceed to trial,’ a continuance would have been granted. No showing was made or attempted, and it is fair to assume that no reasons existed for a continuance. The matter was clearly within the court’s discretion.
II. The following is a copy of one of the notes in suit: “On or before the first day of December, 1887, for value received, we., or either of us, of Spencer post office, county of Clay, state of Iowa, promise to pay to the Aultman & Taylor Company, or order, seven hundred dollars, and negotiable without offset at Clay County Bank, of Spencer, Iowa, with interest at eight
III. On the third day of the trial the plaintiff asked leave to amend the sixth count of its reply by alleging that on December 81, A. D. 1886, the defendants had full and complete knowledge of the ¡condition of the separator in question, and that during the year 1887 they used and operated it, and at no time, either before or after December 31, A. D. 1886, offered to return said machine, and on December 31, A. D. 1886, the defendants had full knowledge of said machine’s condition and defects, and with that knowledge, received and operated the same all of 1887 without objections, which the court refused. The proposed amendment purports to set out only defensive matter to that pleaded in a counterclaim. It was not a count of the reply by itself, but was pleaded in connection with other matters. The facts stated in the amendment, if true, did not avoid, nor were they a defense to, the counterclaim pleaded.. It seems to us that the court wisely exercised its discretion in not permitting it to go upon the files.
IV. The district court presented to the jury the issues on defendant’s counterclaim, as follows: “It further appears, without controversy, that in June or July, 1886, the defendant E. H. Shelton and one Tena-ure purchased from the plaintiff a threshing machine outfit, consisting of a separator and steam engine, for which they executed and delivered to the plaintiff their promissory notes, and that, upon said purchase by said parties, the plaintiff gave to said purchasers a warranty
“ ‘It further appears, without controversy, that afterward, and about December 31,1886, said Tenaure transferred his interest in said'machine and engine to the defendant, O. P. Barber, and that at that time, under a mutual agreement between the plaintiff, Ten-aure, and the defendants, Barber and Shelton, the original notes given on the original purchase of the machine by Shelton and Tenaure were taken up, and Tenaure was released from all obligation on said notes, and transferred his interest in the threshing machine and engine to the defendant Barber; and, instead of the former notes, the notes in suit were executed and delivered to the plaintiff by the defendants, Shelton and Barber. It further appears from the evidence, without controversy, that after the original purchase of said machine by Shelton and Tenaure they took possession of the same, and proceeded to use the same during the threshing season of 1886; but these defend
“ ‘Whereas O. P. Barber and E. H. Shelton have this day executed to the Aultman & Taylor Company their three notes, in aggregate one thousand, six hundred and fifty-five dollars; and whereas, said parties claim said machine does not work or.operate properly: Now, it is agreed, if said party pay said indebtedness . promptly, said company are to make the machine work satisfactorily, and during fall of 1887, if said parties wire and give said company written notice three weeks prior to date of threshing, then said company to have an expert on hand to assist in operating said machine; if said debtors are at fault in operating the same, the expenses of said expert'to be paid by said debtors.
“ ‘The Aultman & Taylob Company.’
“And the plaintiff says that the defendants have failed to pay and settle said notes sued on, and have failed to give the plaintiff written notice of the failure of the said machine to operate properly, three weeks prior to the date of beginning threshing during the fall of 1887; that the defendants used said threshing rig all the year of 1887 without objection, and in no manner notified the plaintiff, either orally or in writing, that it did not give satisfaction.” The jury specially*295 found that the written warranty claimed by plaintiff as having been made to Shelton & Barber was not made and delivered. This finding was under the issue formed as to whether Shelton & Barbór took the machine under the written warranty, or an oral one keeping in force the original ‘ one with certain modifications.
It is true that at some time the written warranty claimed by plaintiff was delivered to Barber, who was a member of the firm. The court, under proper instructions, directed the jury to find whether or not such delivery was to the firm. The rule adopted by the court was that, if it was made the contract when the notes were given, or was afterward delivered to Barber by virtue of an understanding at the time the notes were made, it became the contract, but that if, after the contract was completed by an oral agreement to retain the former warranty modified, and the warranty claimed by plaintiff was afterward delivered to Barber without the assent of Shelton, it was not the contract of the parties. Nothing in the partnership relation of Shelton & Barber authorized one partner to make such a change in the contract of purchase and bind the other. There is nothing in the transaction to bring it within the rule stated in Parsons on Partnership [2 Ed.], section 103 or 219. The signatures to the note do not appear in the record, but we understand that the giving of the notes was not as a partnership, but that each maker signed in his individual capacity. The partnership transactions were merely as to the running of the machine. Our conclusion on this branch of the case will render it unnecessary to consider many questions as to the introduction of evidence, because they are based on the theory of the written warranty being the contract of the parties.
Y. The warranty relied on by defendants is, with certain exceptions, one made in writing between plain
VI. The court gave the general rule as to measure of damage on a breach of warranty in the sale of personal property, — that it was the difference between the actual value of the article when sold and its value as warranted. It is urged that the case is an exception to the rule, and that the rule to be applied is the cost of making the necessary repairs to the separator. We think not. Under the sale to Shelton & Barber, plain
VII. Plaintiff attempted to show that the defects in the machine could have been remedied by defendants if they had known how, and the evidence was excluded, and we think properly so. As has been said, the machine was sold to Shelton & Barber with the understanding that it was defective, and the defects were to be remedied by plaintiff. The fact is not only shown by the oral evidence, but it appears from the written warranty that plaintiff seeks to establish as the contract that the defects then existed, and were the subject of the contract. With the contract as found by the jury, it was entirely immaterial whether or not the defects could have been remedied by defendants had they known how.
VIII. Appellant asked the court to submit some thirty-eight interrogatories to the jury, which the court refused, and the action of the court is assigned as error. The questions can not be set out. They are not questions calling for findings of ultimate facts or conclusions, or, in other words, facts determinative of the case, but are of particular or minor facts in the chain of evidence from which ultimate facts are to be found. Many of the facts to be disclosed by the answers are not in dispute in the case. Others are in dispute, but- the answers would be quite unimportant, as affecting the general verdict. The effect of the questions, as a whole, would have been rather to confuse the jury than to aid it to a correct result. The court submitted six questions presented by the plaintiff, which, we think, covered the material and necessary points for special
IX. By reference to the statement of the case it will be seen that there is a dispute as to two items of credit, making up the aggregate of six hundred and seventy-three dollars and fifty-three cents. The two items of credit as to which there is dispute pertain to the sale of property under a foreclosure of a chattel mortgage given by Shelton & Barber to secure the notes in suit. Plaintiff claims to have paid, as an item of expense in such foreclosure, which was by notice and sale, the sum of thirty-three dollars as attorney’s fees, and that amount is not included in the credit. The court, in its instructions, directed the jury to increase the credit to the extent of the attorney’s fees, thus holding that defendant’s were not liable for it. The plaintiff offered to prove that it ‘‘incurred and paid as expenses of said foreclosure, the sum of thirty-three dollars to Snow Brothers on the fourth day of August, 1888, and the same was incurred under the provisions of said mortgage.” The provision of the mortgage relied upon is that the mortgagor will pay “all charges, costs, and expenses of such removal and sale, and als.o all charges of agents and attorneys for service in such removal and sale.” There is no proof in the case as to the value of the services rendered. The provisions of the Code, in so far as they limit the amount to be allowed as attorney’s fees, seem to apply to actions pending in court, and not to foreclosures of mortgages upon notice and sale. It will be observed that the offer of proofs by plaintiffs does not include the reasonable value of legal services rendered, but what was “incurred and paid” by him. This offer is upon the theory that plaintiff was entitled to what he had paid as such expense. Certainly, the contract can
X. Appellee filed additional abstracts after the time prescribed by the rules, and appellant moves to strike them from the files. It does not appear that the delay in filing has caused any delay in the submission of the cause, nor any prejudice to appellant. In the main, they were justified by the condition of appellant’s abstract. The motions to strike and to tax the costs to appellee are overruled. Scholl v. Bradstreet Co., 85 Iowa, 551, 52 N. W. Rep. 500; Wilson v. Daniels, 79 Iowa, 132, 44 N. W. Rep. 246; Thomas v. McDaneld, 77 Iowa, 126, 41 N. W. Rep. 592.
XI. We have omitted a consideration of some of the assignments argued because they do not involve questions of such importance that rulings thereon would serve as useful precedents. Many questions have been presented as to the admission and exclusion of evidence. They have been examined, and no prejudicial error is found. The case seems to have been fairly tried in the' district court, and its judgment is AEEIBMEP.