173 Iowa 217 | Iowa | 1915
“ ‘No, she is not sound, she has got that wire mark.’ He says, ‘We hitched her up and worked her, we worked her everywheres’; and then he says, ‘We turned her out, and she has not been hitched up for some time.’ He didn’t say how long. Q. Now what did you do then, after that? A. Well, after the mare was started, I went to bidding on her. I bid along until she went up to somewheres in the seventy dollars, and I thought that was high enough on all the guarantee he had to give her and I quit, stopped bidding. Q. Where was Mr. Ellyson when you stopped bidding? A. He was standing rather behind me, off a little bit to the right and a little behind me. When I quit bidding, the auctioneer looked over towards me again a time or two, and Ellyson stepped up and he says, ‘ That mare is all right, she will go right out into the field and work. ’ Q. What did you do then ? A. I went ahead bidding. Q. How high did you go on her then ? A. Han her to $122.50, and she was knocked off to me. Q. When you commenced bidding again there, did you rely upon what Mr. Ellyson said to you at that time? A. I certainly did. Q. Would you have bid on her again after you stopped as you have stated if he hadn’t made that statement? A. No, sir, I would not. Q. Did you believe the statement to be true that he made to you? A. I certainly believed it, or I wouldn’t have bid any more.”
After purchasing the animal, defendant took her home and, after two trials at hitching her up and making her work,
The plaintiff’s version of the affair, we have already given; and, according to some of his witnesses, the statement was that he (plaintiff) “had broke the animal the spring before and worked her and turned her out, and that he would sell her as a ‘green broke’ animal”; but these witnesses did not hear or testify to any subsequent declarations by plaintiff after the one made in response to the auctioneer’s statement, and plaintiff himself testified that he made but the one statement. The question as to what was said by plaintiff, both before • and during the sale, was manifestly for a jury, and the court gave the following instructions with reference thereto:
“No particular form of words are necessary to constitute a ‘warranty’, but any statement or declaration by the seller distinctly representing or affirming the condition or quality of the article or thing sold at the time of the negotiations for the sale, which are intended, and from which the purchaser at the time had reasonable grounds to suppose and believe were intended by the seller to effectuate the sale; that the purchaser did in fact so believe in making the purchase, and relied upon them, and .in the truth of them, and which were opérative in effecting the sale, is a warranty. .
“The mere opinion or praise of the property sold, or an*221 affirmation o'f its soundness or quality when exposed for inspection or sale does not of itself constitute a warranty; or if the purchaser relied on his judgment, and not on the statements of the seller, and was determined to make the purchase without such representations, in such ease there is no warranty.
“Instruction '4 — If the defendant has established by a preponderance of the evidence the fact that the plaintiff, at the time of and just before the sale of the mare in question, stated to persons there assembled for the purpose of bidding on the mare that the mare was well broken and was a good, gentle mare and would work any place, which statements plaintiff intended, and from which defendant had reasonable grounds to believe the plaintiff intended, thereby to effectuate a sale of the mare as being well broken to work any place, and he did so believe them and relied thereon, and upon the truth of the statements; and you find that such representations were operative in making the sale; and you further find that in fact said mare was .not well broken and was not a good worker as represented, then the defendant would have the right to rescind the contract and return the mare in a reasonable time after discovering that she was not as represented, and demand his note.
“Instruction 5 — But if you believe from the evidence that at the time of the sale, that a fair and reasonable construction to be placed on the language used by the plaintiff was that he did not intend to warrant the mare as being well broken and good to work any place; nor intended the defendant to believe that she was well broken and would work any place and thus induce him to buy the animal; or if you believed the mare was gentle and quiet and well broken and sound for an animal of her age, or you believe that the plaintiff, in what he said at the time of the sale, did not intend to represent the mare as well broken and good to work in order to effect a sale, then there was no direct or implied warranty of the mare as a good quiet worker, which has been breached*222 and the defendant has not sustained his defense and your verdict should be for the plaintiff.
“Instruction 6 — Where the question is as to whether certain language used by the seller of the property was understood between the parties as constituting a warranty or guaranty, the seller’s intentions must be drawn from the language used, and all the facts and circumstances given in evidence relating to or bearing on that point. This rule is applicable in this case in .determining the intention of the plaintiff in the use of the language you find he did use, at the time of the sale of this mare. If, in accordance with the rule, you believe he meant to invest the animal with the qualities of a good work horse, well broken, that would constitute a warranty, but if you do not believe he so intended, then there is no warranty and there is no merit in the defendant’s defense to the note. ’ ’
These instructions are all challenged, although' several of them are, in substance, the same as those asked by plaintiff.
II. The chief complaints made are: (1) that the testimony was insufficient to justify a finding that the animal was warranted; (2) that the proof does not correspond with the allegations of the answer setting up the warranty; (3) that the answer does not allege, nor do the instructions require, that defendant prove that the statements made by plaintiff were with intent on the part of the seller that they should be treated as a warranty and be acted upon by the buyer.
III. Certain rulings on testimony are complained of. They are manifestly right and, as they involve no new questions, we need not further consider them.
Appellant’s contention that all the record discloses is simply dealers’ talk, which could not in law amount to a warranty, is manifestly unsound. Whether or not there was a warranty was properly submitted to a jury, and plaintiff must be content with its verdict.
What we have already said disposes of every proposition relied upon and, as we find no error, the judgment must be and it is — Affirmed.