34 Iowa 272 | Iowa | 1872
The note in question was executed in part consideration of a Buckeye reaper and mower, sold to defendant by the plaintiffs’ agents, under a printed warranty as follows: “ The Buckeye reaper and mower is warranted to cut, if properly managed, one acre per hour, or ten or twelve acres per day, either grain or grass, in a workmanlike manner, with one pair of horses. The purchaser is allowed to cut two acres of grass, and also two acres of grain on trial, and, in case any thing proves defective, due notice must be given to us or our agent, and time allowed to send a person to put it in order. If it does not work after this, and the fault is in the machine, it will be taken back, or that part of it which proves to be defective, and will be replaced, or the ruoneypaid for it refunded.” The defendant testified as follows: “ I gave an order for the machine to Charles Sieber. Bought it of Hunt '& How-land, plaintiffs’ agents at Cedar Falls, and gave them the note. The machine did not cut wide enough in grain;
The action of the court mainly objected to consits in the giving of the following instructions, to wit: “The defendant might have set the machine aside, and have waited for the agent of plaintiffs to come and fix it; and if he chose he could go on and use the machine to the best of his ability, and in so doing he lost his right to abandon his privilege to set the machine one side and recover back the price, and he becomes liable to pay for the machine at the contract price, subject to be reduced by the damages which he has shown he has sustained, by reason of the defects in the machine.”
Appellant insists that if defendant cut more than two acres of grass or of grain before notifying, plaintiff of defects, or if he continued to use the machine after such notice, he thereby violated the express terms of the warranty, and is estopped from claiming any thing thereunder. We think the court rightly instructed upon this point. The warranty is not a conditional one, as in Bamberger, Wright & Co., v. Greiner, 18 Iowa, 477. It is absolute, “ The Buckeye reaper and mower is warranted to cut, if properly managed, one acre per hour or ten or twelve acres per day, either grain or grass, in a workmanlike manner, with one pair of horses,” What follows provides the terms under which the machine, or the defective parts will be taken back, and the money refunded.
Where there is a breach of warranty, the vendor may return the article purchased, and recover the price paid, or he may retain it and recover the damages consequent upon the defect. If the defendant in this case, owing to the terms of his contract could not pursue the former course, he may, nevertheless, follow the latter. This the instruction given permitted. The other instructions, of which complaint is made, involve the same principle, and need no further notice.
III. It is claimed that the verdict is not supported by
Fred. Herman testified: “ Bought reapers and mowers ; would not have this if you gave it to me; I got a mower for $40, that I put on my reaper; I don’t know the cash value of this machine, think it was worth as much as I paid for mine.” Karl Muller testified that the grain part of this machine was worthless; the mower may have been worth $100; it may have been worth more or less. H. C. Hunt testified that the market price of the Senior mewer (the size defendant had), without the reaping attachment, was $160. W. G. Barnes testified: “ Think we sold the Senior for $135, and Junior for less.” From this testimony we think the jury were fairly warranted in finding that the value of the mower did not exceed the amount paid.
We have considered all the errors urged in the argument, and are of opinion that the judgment should be
Affirmed