168 Iowa 170 | Iowa | 1914
The petition states, in substance, that under a written contract with the defendants, plaintiffs furnished them a certain electric engine, with specified accessories, to be placed in and used in connection with a building owned by one of the defendants in the city of Le Mars; and that a claim for mechanic’s lien for the agreed price of said improvements had been duly filed. They further' allege that defendants refuse to pay the contract price and pray a de
After hearing the testimony offered on these issues, the trial court entered a decree in which it is found that plaintiffs were informed of the purpose for which the machinery was desired by defendants and induced defendants to believe that it would do such work, but that in fact it failed to comply with the representations. It was also further found that there was never a completed delivery of the machinery and that defendants never had in fact accepted it. Upon these findings plaintiff’s bill was dismissed.
That the case before us comes within the last mentioned principle rather than the former is not an open question on this appeal. That question was.before us upon a former appeal where we had to consider this very issue. See Pew v. Karley, 154 Iowa 559. On the first trial, the court below adhered to the view of the law for which appellant’s counsel now contends and refused to admit testimony that plaintiff • knew the purpose for which the machinery was required or assured defendants that it would do the work, and held that., the express warranty found in the writing that the thing
III. On the trial below the plaintiff made the claim that the failure of the machinery to do good work was due to the unskilful or improper use thereof by the defendants. Of this we think there was no sufficient proof. It is true that some of the plaintiff’s witnesses expressed the opinion that defendants “overloaded”, the engine, causing the machinery to “choke down.” The testimony of disinterested witnesses is to the effect that when complaint was made and the plaintiff itself or its agents undertook the operation the same result — a choking down, or dying down, or stopping of the motion— would follow. Again it is said that the failure was chargeable to the use of too small wire in some of the connections. At least some of the wire was supplied by plaintiff itself. The
The case presents little but fact questions for our attention and while, as we have before said, much of the testimony is in more or less dispute it still fairly' supports the decree below and it is therefore — Affirmed.