Gardner v. Trenary, 65 Iowa 646

Gardner v. Trenary

65 Iowa 646 | Iowa | 1885

Rothrock, J.

I. The ease is triable anew in this court. An examination of the evidence shows that it took a very wide range. The fact is well established that the defendant was proprietor of a patent-right, which consisted of a contrivance designed to be used to attach a walking plow to a sulky *647cultivator, so as to make a sulky plow of the combination. During the spring, summer and fall of 1882, the defendant was engaged in the northwestern part of the state in disposing of the right to sell his patent in such territory as he could. Lie had a sulky cultivator with his patent attached, and he exhibited it at various places, and tested it in the presence of those to whom he proposed to sell territory. The plaintiff introduced evidence of alleged fraudulent sales made to others. This evidence was objected to in the court below, and we are asked to disregard it in the decision of the case in this court. It is-, perhaps, correct that evidence of other fraudulent sales is not admissible for the purpose of showing that the sale to the plaintiff was effected by the fraud of the defendant.

II. It is insisted that the representations made by defendant were mere words of commendation or expressions of opinion as to the quality of his contrivance. In answer to this, we think it is enough to say that the evidence satisfies us that the defendant induced the plaintiff to enter into the contract by sucli false representations as the law regards as sufficient to avoid a contract, and that his representations were of such a positive character as to amount to a warranty.

III. It is insisted that a motion made by the defendant to exclude certain depositions should have been sustained. This motion was based upon the ground that said depositions were taken by the plaintiff after-the time fixed by an agreement of the parties within which the taking of testimony should be closed. There was no error in this ruling, because the record shows that the court gave the defendant ample time to take additional evidence after the 'motion was disposed of, and before the trial.

IY. We will not review the testimony of the witnesses. It is not our practice to do so. The evidence in this case establishes about the following state of facts: The patent-right in question was a worthless contrivance, by the sale of which the defendant succeeded in deceiving and defrauding the *648plaintiff. His invention could not be made to work on any ordinary sulky cultivator, as be claimed and represented it could. It required a great weight upon the end of tiro tongue to bold it down, and in testing it be deceived bis victims by using an iron neck-yoke, weighing from forty to sixty pounds, which was painted so as to resemblo wood. He hired and paid men to assist in defrauding their neighbors. It is claimed that, as the plaintiff saw the machine tested, bis eyes were his market, and that be had no right to rely upon any representations. It is a matter of wonder that some people have not learned that a useful and valuable invention is not hawked about tlie country and sold by counties and townships, and payment taken in all sorts of unsalable property. yJBut the law will not allow one committing a fraud of tin's kind to protect himself by the claim that his victim was easily deceived, and did not act in the matter with reasonable prudence.

Aepirmed.