193 Iowa 668 | Iowa | 1922
— The petition alleges, and the answer admits, that defendant is, and was at all times mentioned, a copartnership, composed of defendants M. E. Lusk and T. A. Conant, engaged in the business of dealing in phonographs and accessories. But two witnesses testified in the case, and the testimony of one of these was brief. There are several exhibits in the record, including the contract between the parties and some letters. Some of these are duplicated in the abstract. The arguments comprise nearly 100 pages, and many cases are cited on a number of different propositions argued. Forty-six errors are assigned,
The plaintiff is a physician, and operates a drug store in the town of Lake Wilson, Minnesota. Prior to the making of the contract herein, he had had some experience in handling phonographs in his business. On July 23, 1919, one Marquis, a salesman for defendant company, explained to plaintiff the defendants’ method of distributing their phonographs, and described to plaintiff the phonographs defendants were selling. Plaintiff wanted to sell the phonographs through his drug store business. He says he wanted something good, and Mr. Marquis, by his statements, led plaintiff to believe this machine was, in every particular, the kind of machine that plaintiff wanted to sell to his trade. Plaintiff desired to see the machine, before concluding the matter, and at his request, Paragraph 18, herein-. after referred to in the long printed agency contract, was inserted. The contract was signed, as were the notes, and delivered to Marquis. Paragraph 2 of the contract states that defendant may ship “the merchandise described in accordance with the terms and conditions of this, our agreement.” Paragraph 18 is as follows:
“And the Serenado Mfg. Co. further agree that if the machine, Model No. 49, does not meet with the full approval of G-. G-. Balcom he may return the same within five days after arrival, at your expense, and the notes furnished will be promptly returned with the contract. ’ ’
The contract is signed by plaintiff and Marquis, salesman. Five notes of $50 each were attached to the contract, and there is a notation on the contract that defendant was authorized to detach the notes when the order is approved and the first shipment made. The notes were made payable to the order of Serenado Manufacturing Company, of Cedar Rapids, Iowa. After the signing of the contract and notes, the phonograph was received by plaintiff, September 1, 1919, and he paid the express. The machine was unpacked, and plaintiff testifies that he examined it — the finish, construction, and general appearance — with care, and did not approve of the machine, and was not satisfied
Plaintiff testifies that his objection to the machine, and his failure to approve the same, were in good faith.
Defendant placed one of its employees on the stand, who testified that he saw the machine in question, immediately upon its return from plaintiff. By numerous questions to the witness, objections to -which were sustained by the court, defendant sought to show that, as to some, at least, of the complaints made by plaintiff, as to the construction, finish, and so on, of the machine, they were not as claimed by plaintiff. This was on the theory, we assume, that the machine was such as thaf plaintiff ought to have been satisfied, and that he should have approved it. The offered evidence did not cover all of plaintiff’s objections. As to such other qbjections, there was no dispute in the evidence. There is nothing in the record which tends to show that plaintiff was not acting in good faith, both in entering into the contract and in regard to his dissatisfaction and failure to approve. There was no acceptance of the machine by plaintiff. Under the authorities, plaintiff was not required to
“Parties may contract that if, upon inspection, or upon trial, the purchaser is not satisfied with the article purchased, he may refuse to take it, or, if taken on trial, may refuse to keep it. The authorities are in accord in holding that, where a chattel is purchased under an agreement, as alleged in this case, the buyer is not liable for the price unless he is satisfied, and accepts the article. In such case, he is the sole judge whether the article is satisfactory or not; and, if he is not satisfied, he is not bound to accept the article, although, as a matter of fact, he ought to have been satisfied therewith. It is further said that the buyer is bound to act honestly, and to exercise such judgment and capacity as he possesses. His dissatisfaction must be real, not feigned. But as it is the buyer who is to be satisfied, and not someone else, it has been, held that he is not bound to use the care and skill of ordinary persons in making the decision, but only such capacity and judgment as he himself possesses. ’ ’
We are of opinion that the trial court rightly directed a verdict. The judgment is affirmed. — Affirmed.