81 Iowa 375 | Iowa | 1890
The warranty of which a breach is claimed is as follows:
“This machine is hereby purchased and sold subject to the following warranty and agreement, and no one has any authority to add to, abridge or change it in any manner. All our machines are warranted to be well built, of good material, and capable of cutting, if properly managed, from ten to fifteen acres per day. If, on starting the machine, it should in any way prove defective, and not work well, the purchaser shall give prompt notice to the agent of whom he purchased it, and allow time for a person to be sent to put it in order. If it cannot then be made to do good work, the defective part will be replaced or the machine received back from the purchaser at the office of the agent from whom it was purchased, and the money or notes returned. Keeping the machine during harvest, whether kept in use or not, shall be deemed conclusive evidence that the machine fills the warranty.
“William Backer,
“ Sarah Backer.”
The particulars of the breach as alleged are that the binder was not well built, and did not do good work. The record shows conclusively that there was a breach of the contract, and that fact stands unquestioned. It will be observed that the contract provides that if the machine is not made to work well it will be received back “at the office of the agent from whom it was purchased,” and that “keeping the machine during harvest, whether kept in use or not, shall be deemed conclusive evidence that the machine fills the warranty.” The machine was not returned, and, as an excuse therefor, defendants pleaded that in due time
The assignments are based on the action of the court in excluding offered testimony, and it will be necessary to set out some parts of it. The defendant, William Backer, testified that the order for the machine was given to Robert Biddle, Joseph Hoopes, and W. C. Wilson, as agents for the plaintiff. After describing the defective workings of the machine, his testimony was continued, and the following partial exhibit of the record will be sufficient to properly understand the assignments we are about to consider: “I notified the company of the defects in the machine four times. Mr. Wilson came out four times, and tried to make it work, but could not make it do any better.
ilQ. How many times did they come out? A. Four times. The last time I came in and told them that the machine would not work, and I would not keep it. Mr. Biddle said they had found out it was all in the twine, and he said to keep it and they would see that it worked all right the next year. (Plaintiff objects, as incompetent, and moves to strike out the answer.) By the court: Sustained. (Defendant excepts.)
“ Q. What did the plaintiffs say when you told them that you would bring the machine back ? A. Mr. Biddle and Osborne’s man said that it was all in the twine. I told them I did not want the machine, and I was going to bring it back, and they. said keep it and they would guarantee that it would be put in working order the next year, and work all right. I asked Mr. Biddle : ‘ Are you working for the company yet?’ He said, ‘ Yes.’ I asked him, ‘ Have you authority to make this contract?’ He said, ‘I have.’ (Plaintiff objects as incompetent. Sustained. Defendant excepts.) I kept the machine the following summer. The company sent a man out twice during the second season to remedy it, but they failed to make it work.
Eli Backer, being produced and sworn on behalf of defendants, testified: “I know that R. Biddle was the agent of plaintiff during the season of 1886. He came out to fix the binder several times, but could not make it work.”
William Backer, recalled by the defendants, testified as follows : “ Q. State whether you know whether the man that took this order was acting as general or special agent of this plaintiff. (Objected to as incomper tent, immaterial and irrelevant. Objection sustained, and defendants except.)”
I. It is manifest that the effort of the defendants was to show that the plaintiff had waived the condition of the contract as to the return of the machine, and it is equally manifest that the conviction of the district court was against its right to do so, and relied for its ruling on the first sentence of the contract as follows : “This machine is hereby purchased and sold subject to the following warranty and agreement, and no one has any authority to add to, abridge or change it in any manner.” The language of the sentence is sufficiently comprehensive to include the parties to the contract, and, if operative, the position of the district court is certainly correct. Is, then, a stipulation in a contract that the parties to it may not change it in a lawful manner, of any force ? We should be careful here to avoid a confusion of this question with that of the rights of parties to limit or restrict the manner or method of changing contracts,- as by providing how or by whom changes may be made. This contract is as conclusive against'the defendants for sucha purpose as against
Having held that the parties by themselves might waive the agreement to return the machine, could it be done by the agent of the plaintiff ? The plaintiff being an aggregation of persons, it could only act by an agent, and of necessity the change must be so made ; and the stipulation has no reference to particular persons or classes of persons ; it is against changes by anyone. The proceeding, then, is uninfluenced by the stipulation, and any competent agent could bind the parties.
II. The only remaining question is as to the authority of the agents, or persons with whom the
