75 Iowa 45 | Iowa | 1888
— A written order was executed by the defendants for a machine to be delivered by the plaintiffs at Washington Mills, Iowa. The order appears to be in the same form as the order of Davis & Sons v. Robinson, 67 Iowa, 356. It appears from the order that
The contract was one of warranty, which was in writing, by which the machine was warranted to be well made, of good materials, and, with proper management, capable of doing first-class work. There were the usual provisions for a fair trial of the machine, and for notice to the plaintiffs, if it did not work well, and for a reasonable time to get to the machine to remedy the defects, with the necessary and friendly assistance clause; and that, if the machine could not be made to do good work, to be returned to the place where received, and a new machine given in its place, or the notes would be returned. The warranty contains this .further provision: “It being understood and agreed that if purchaser does not make full settlement with cash or approved notes for the machine, upon its delivery to him, he thereby waives all claims under this warranty. (No agent has authority to change the above warranty.) There is no verbal agreement or condition to this sale.”
It is alleged in the petition that the machine was shipped to Washington Mills, and the possession thereof delivered to the defendants, and that they converted the same to their own use, but did not execute the notes for the purchase price; and judgment is demanded therefor. The answer to this petition was in these words : ‘ ‘ Defendants, in answer to petition of plaintiffs in above-entitled cause, say: They admit the giving of the order set out in the petition, but deny that the plaintiffs complied with said order, and say that plaintiffs did not send said machinery to them at Washington Mills, but sent the same to plaintiffs’ own agent, one H. L. Gross, who then delivered the same to these defendants, and also handed them the notes and mortgage referred to in said order,
The demurrer to the answer was as follows : “Now comes the plaintiff, and demurs to the answer of defendants on the following grounds : First. Because said answer does not constitute a defense to the plaintiff’s petition, because plaintiff sues on a written contract, which is admitted by the answer, and the facts stated in the answer undertake to vary, contradict and alter the terms of said written contract by prior, contemporaneous and subsequent parol agreements. Second. The defendants’ answer admits the execution and delivery of the
It will be observed that the contract upon which the ’ suit was brought is wholly executory. . It was an- agreement to take the machine and give the notes. By the averments of the answer, which are to be taken as true, the machine was shipped to the agent Gross, and by him delivered to the defendants. It is insisted by the plaintiffs that the defendants had no right to take the machine without giving the notes. It appears that Gross undertook to waive this provision of the contract, and delivered the machine for trial before giving the notes. The plaintiffs and the court seem to have been of the opinion that the defendants by their answer claimed that there was a breach of the written warranty. That seems to be the basis of the second and third grounds of demurrer, which were sustained. We do not so understand the answer. It avers that the machine was absolutely worthless, and wholly unfit to perform the work for which it was intended ; and that, for that reason, they refused to accept it as being in compliance with the order. The transaction never became a complete sale. But the plaintiffs, by their petition, claim that, after the defendants wrongfully converted the machine to their own use, they refused, and still refuse,
II. The plaintiffs appeal from the order overruling the demurrer on the first and fourth grounds, thereof.
Reversed.