173 Iowa 38 | Iowa | 1915
The controversy between the parties centers lipón a certain written contract entered into between them on September 2, 1912, whereby the plaintiff leased to the defendant a certain “asphalt plant” and a five-ton roller to be used by the defendant in the performance of a certain paving contract which he had entered into with the city of Winterset, Iowa. The compensation for the use of such machinery, specified in the written contract, was 7 cents a square yard for all pavement built therewith. The petition was in four counts. The first count claimed recovery of the agreed rental; the other counts charged breach of the contract by the defendant. The second count claimed for freight paid in the return of the machinery; the third count claimed for the cost of repairs
I. The record is voluminous and is in considerable confusion. We shall not undertake to discuss its details. Assuming, for the sake of discussion, that an implied warranty of fitness for the particular use was available to the defendant, we think, nevertheless, that, upon the most favorable view of the defendant’s own evidence, he did not show himself entitled to damages as for breach of such a warranty. Ñor did his evidence warrant a finding of fraudulent representations as a basis for damages. This conclusion necessarily eliminates a great many questions pertaining to rulings upon the
“Gentlemen: Yours of the 18th received. The reason you have not heard from me because I was away from home. Now I have never had to pay for the use of a piece of machinery of this kind until I got my money out of the work. The work is accepted and it will take about 50 days to get my certificates cleaned up, and I wish you people would please wait until I get this in. It will be a great accommodation to me. Thanking you in advance for the same, ’ ’
No attempt was made to harmonize this letter with the present claim of previous oral agreement. We think, therefore, that the evidence of the defendant himself, especially in the light of his letter, would not warrant any other finding on the plea in abatement than that returned by the jury. We need not, therefore, consider in detail the alleged errors assigned, pertaining to rulings on evidence- and the instructions on this question.
As to the fourth count of plaintiff’s petition, the defendant was successful. We need not, therefore; consider ruling's on evidence and instructions pertaining to this count.
The same may be said as to the matters allowed on the first and second counts of the petition, viz: the amount of the agreed rental and the amount paid for return freight. No real controversy was made at the trial over these two counts.
We find in the record no ground, therefore, for interference with the judgment as rendered.
The appellant has submitted a like motion to strike the argument of appellee. Suffice it to say that the argument was filed within the time provided by the rules. The motions to strike will, therefore, be overruled.
The judgment below is — Affirmed.