152 Iowa 270 | Iowa | 1911
The plaintiff purchased of the defendant a span of horses. He averred in his petition that he purchased them “under a warranty from the defendant” that
In that class of cases where there was no warranty in express terms we have frequently held it “incumbent upon the plaintiff to show that the seller made some distinct assertion of quality concerning the thing sold as distinguished from a mere statement of opinion or of praise, and that he intended such assertion to be believed and relied on by the purchaser as an undertaking on his part that the article is what he represents it to be, and that it was so understood and believed and relied on by the purchaser.” Schlichting v. Rowell, 140 Iowa, 735; Richardson v. Coffman, 87 Iowa, 123; Jackson v. Mott, 76 Iowa, 265, 266; McGrew v. Forsythe, 31 Iowa, 181; Tewkesbury v. Bennett, 31 Iowa, 85. The, plaintiff’s case, as made upon the record before us, does not come within this class. The petition declared upon a “warranty” in express terms.
•In this state of the record the rule contended for by the appellant is not applicable to the case.
No other points are argued. The case must therefore be> and it is, affirmed.