190 Iowa 424 | Iowa | 1920
— Plaintiff alleged in his petition that, on or about August 27,1917, he gave a written order to the defendant, through one Tony Rubes, its agent and salesman, for “one gas pull, rated 15, tractive H. P. 30; brake H. P. tractor with usual equipment, with kerosene equipment, also furnish with extension rims,” agreeing to pay therefor as follows: To execute a note for $1,170, due October 1,1918, and to deliver to the defendant, free of incumbrance, F. O. B. ears at Ruthven, Iowa, a secondhand Heider tractor. He also alleges that the said written order provided:
‘ ‘ Said machinery is warranted to be well made and of good material, and with proper use, capable of doing as good work as any other machine of the same kind, size, and rated capacity, working under like conditions; but any machine or part thereof not manufactured for or by vendor, or which is secondhand, rebuilt, or repaired, is not warranted, by statute or otherwise.”
He further alleges that the defendant, through its agent aforesaid, represented that the said tractor was a kerosene pull; that it would pull four plows through stubble, and three plows through sod, with kerosene as a pull; that it was capable of doing the work for which plaintiff desired it; that the secondhand Heider tractor was delivered to defendant on the day the order was signed, and his note, as agreed, on September 10th; that the tractor was delivered at plaintiff’s farm on or about said date; that plaintiff, with the aid of defendant’s agent and ex
Plaintiff further alleged that the written order signed by him provided, as a condition precedent to any right of rescission of the contract, that he give defendant notice, specifying the defect or breach of the warranty, together with the time of discovery, by registered letter, addressed to it at its head office, within four days after discovery thereof; that he did give oral notice immediately to defendant’s agent, who promptly responded, and undertook to repair, adjust, and place the tractor in condition for use; and that the said defendant thereby waived the provisions of the contract requiring notice by registered letter, within the time specified.
The answer of defendant admitted the execution and receipt of the signed order, with warranty, and of the consideration, as set forth in plaintiff’s petition, and otherwise denied the allegations of the petition.
The evidence on the part of the plaintiff tended to sustain all of the allegations of the petition, and that on the part of the defendant, to show that the tractor wasdn good order and working condition, when it was delivered to plaintiff at his farm; that, when he undertook to operate it, he did so in such a manner that the shifting gears were broken, and the tractor severely damaged; that, after it had been repaired and adjusted, it worked properly, and fully met the requirements of the written warranty. The evidence as to these matters is in dispute, and was properly submitted to the jury; and its finding thereon is conclusive. Plaintiff admitted that the shifting gear and some castings were broken while he was attempting to operate the tractor, but testified that it was caused by a set screw which was insufficiently fastened in place and which eame loose, and got into the gearing.
Hoffman, another witness for plaintiff, was permitted to testify, over the same objections of counsel for defendant, that he heard Bubes tell Hanson that, if the sale was rescinded, he would have to pay the dealer’s commission. The objection that this testimony was all hearsay was not urged. Evidence of the price paid by Hanson for the tractor was admissible, as bearing upon the question of value, the weight thereof being for the jury. Thompson v. Anderson, 94 Iowa 554; Hanley v. Chicago, M. & St. P. R. Co., 154 Iowa 60; Kirkwood v. Perry Town Lot & Imp. Co., 178 Iowa 248. The evidence in question was not of a character to be very persuasive as to the amount of commission allowed on the purchase price of the old tractor, and Bubes denied that anything was allowed Hanson, and .stated that no dealer’s commission was paid.
“This is to certify that the machinery herein described is now in good working order, and hereby waive all claims, whether
The signature to the latter statement was denied by plaintiff, while on the witness stand. The genuineness of the signature to the former statement was admitted by him.
The court, when this evidence was admitted, and in the seventh paragraph of its charge to the jury, limited the consideration of the latter instrument to the question whether or not the tractor was, in fact, in good working order at the time it was signed,, and whether it fulfilled the written warranty; and specifically told the jury that it should not be considered as in any sense waiving any of the claims made by the plaintiff against the defendant.
Counsel for appellant contends that one of the chief purposes for which this evidence was introduced was to impeach the credibility of plaintiff’s testimony, and that the effect of the court’s instruction was to deprive defendant of the full purport and value thereof. The court did, however, give the usual and customary instruction upon the credibility of the witnesses. If counsel desired other or further instructions upon this point, it should have requested that same be given. Expert witnesses called by defendant did testify that the signatures upon the two statements were written by the same person, but plaintiff at all times insisted that the latter signature was spurious. It may be assumed that the jury gave proper consideration to all evidence affecting the credibility of the witness, and we do not think the limitation placed upon this evidence by the court in instructions deprived defendant of the full purpose for which it was offered.
Several minor points are discussed by counsel; but, as they present no ground for reversal, we omit special reference thereto or discussion thereof. As we find no reversible error in the record, the judgment of the court below is — Affirmed.