192 Iowa 771 | Iowa | 1921
Plaintiff, appellant herein, a corporation having' its principal place of business at Minneapolis, Minnesota, commenced this action against the defendant, appellee herein, a corporation having its principal place of business at Leland, Iowa, to recover the purchase price of a Dual Marquis machine, which was sold to the defendant upon written order, with express warranties. Plaintiff’s petition is in the usual form of an action of the character stated, and included a copy of the signed order, with the warranties printed on the reverse side thereof. The defendant in its answer set up the breach of the express warranties and of certain implied warranties; that the sale was not completed for the reason that defendant refused to accept the machine; and that it rescinded the contract within a reasonable time, and offered to return the machine. The signed order, among other things, provided as follows:
‘ ‘ If the machine does the work according to your guarantee on back of this order, we will pay for it cash within 10 days after date of invoice, in which event we shall be entitled to a discount of 5 per cent; otherwise the terms are to be 30 days net from date of invoice. Special arrangements for note settlement may be made, bearing 8 per cent interest from date of invoice at your approval.
“If we are unable to make this cleaner work to' our satisfaction through our operation, we are to notify you and give you an opportunity to have your representative come and show us how to run the machine; whereupon definite settlement shall be made, rendering it unnecessary for your representative to again appear, unless so requested and at our expense. In the event that your representative is unable to make this machinery operate according to the guarantee on the back of this order, we are to notify your office at Minneapolis, Minnesota, stating, in substance, the difficulty, and you are to advise us what disposition is to be made.”
The express warranties printed on the back of the signed order are, in substance, as follows: That the machine would be
The court did not, in its instructions to the jury, define the term warranty, either express or implied; and the only statement of the warranties which defendant alleged were violated was in the court’s statement of the issues.
The issues as to the alleged breach of warranties submitted to the jury by the court were substantially as follows: (1) That the machine did not have the warranted capacity for wheat or barley, and that its capacity did not exceed 250 bushels per hour; (2) that in its operation there was an unreasonable loss of wheat through suction, tailing, and otherwise, and that a great amount of wheat was lost and wasted by being carried out with the dirt and waste from the machine; (3) that the operating sieves clogged at frequent intervals, interfering with the continuous operation- of the machine; (4) that the said machine was not reasonably adapted to the purpose for which it was ordered, and that it required the constant attention of one and the frequent attention of two men at all times during its operation; (5) that the apparatus into which the grain is fed is not
The first three of the warranties above referred to are treated by counsel in argument as coming within the specific terms of the written instrument. The others are referred to as implied warranties. Before proceeding to a discussion of the questions presented for review, we will make a brief general statement of the record. The order is dated September 30, 1918, and was obtaind by A. C. Weisman, appellant’s salesman, at a meeting of appellee’s board of directors. The cleaner was delivered at appellee’s elevator December 23d following. Mr. Weisman undertook to at once install and test the capacity of the machine. It did not operate to the satisfaction of defendant’s manager and board of directors. One or more representatives of plaintiff at different times subsequently visited Leland, tested the machine, and sought to demonstrate its capácity and efficiency to the satisfaction of the purchaser. The evidence tended to show that the sieves clogged; that its operation required constant attention; that it was wasteful; and that its capacity was much less than 600 or 800 bushels of wheat per hour. Plaintiff offered evidence to the effect that the grain used in making the test was wet, sprouted, and wholly unsuitable therefor. The testimony upon this point is in conflict, the witnesses for defendant testifying that the grain was not damp or sprouted to such an extent as to reasonably interfere with the successful operation of the machine to its full capacity.
The evidence on behalf of the defendant further tended to show that, before the order was signed, plaintiff’s salesman was informed by members of defendant’s board of directors that they employed only a manager and a helper in the elevator; that they did not desire to purchase a machine that would require constant attention to operate it, or one that would make it necessary to employ other and further help ;-that plaintiff’s salesman then stated to the officers of defendant that the machine in question operated automatically; and that it would'not be necessary for defendant to employ other or further help; that it was self-adjusting, and would require only occasional attention.
The propositions relied upon by appellant for reversal are:
(a) Tbe admission of parol evidence of conversations and negotiations between the parties, prior to tbe signing of tbe written order; the refusal to charge the jury that same were merged in the written instrument; tbe submission to the jury of the issue of implied warranties.
(b) The admission of testimony to prove the alleged representations and statements of Weisman ’that tbe machine was self-adjusting and operated automatically, and that it would not be necessary for appellee to employ other or further help in case it was installed in its elevator, for the reason that same constituted an express oral warranty, which could not be shown or added to tbe express warranties; and the submission to the jury of the issue of implied warranty, based upon the above representations.
(c) That defendant received, accepted, and retained tbe machine for an unreasonable time, with full notice of its defects, without notice to appellant of such defects, at its office in Minneapolis, Minnesota; and that, by reason thereof, it waived its right of rescission.
These propositions are presented in the record and in argument under various assignments; but they are, in substance, the matters relied upon for reversal. Appellant, at the close of plaintiff’s testimony, moved for a directed verdict, upon the ground that it affirmatively appeared from the evidence that the defendant had failed to comply with the terms of the written order by giving notice and by rescinding within a reasonable time. This motion was overruled. The case was tried below and is argued in this court upon the theory that the warranted capacity of the machine is not limited to its operation in cleaning No. 1 and No. 2 wheat. The express warranty as to these grades of wheat apparently has nothing to do with the warranted capacity of the machine per hour. Both the parties
the written contract contains express warranties (Bucy v. Pitts Agr. Works, 89 Iowa 467; Western Elec. Co. v. Baerthel, 127 Iowa 467; Loxtercamp v. Lininger Imp. Co., 147 Iowa 29; American P. P. Co. v. American P. A. Co., 172 Iowa 139; Sturtevant Co. v. Le Mars Gas Co., 188 Iowa 584; Alpha Checkrower Co. v. Bradley & Co., 105 Iowa 537; Pew Co. v. Karley & Titensor, 154 Iowa 559; Ideal Htg. Co. v. Kramer, 127 Iowa 137; Blackmore v. Fairbanks, Morse & Co., 79 Iowa 282); also, that express warranties provided in a written contract of sale cannot be added to or varied by parol evidence. Nichols, Shepard & Co. v. Wyman, 71 Iowa 160; Blackmore v. Fairbanks, Morse & Co., supra; Bucy v. Pitts Agr. Works, supra; Four Traction Auto Co. v. Hurni, 156 Iowa 725; Western Elec. Co. v. Baerthel, 127 Iowa 467; Electric Storage Bat. Co. v. Waterloo, C. F. & N. R. Co., 138 Iowa 369; Four Traction Auto Co. v. Hurni, 170 Iowa 476. Also, that, where an article is purchased by description of the seller, there is an implied warranty that the goods will correspond with the description furnished. Gould v. Stein, 149 Mass. 570 (22 N. E. 47); Henry & Co. v. Talcott, 175 N. Y. 385 (67 N. E. 617); Lissberger v. Kellogg, 78 N. J. L. 85 (73 Atl. 67); Section 14 of the Uniform Sales Act, Chapter 396, Acts of the Thirty-eighth General Assembly. Section 14 did not, however, go into effect until after the order in question was signed. The record discloses in this case that plaintiff’s salesman, who took the order, was fully informed by the officers of defendant as to the kind of machine desired, the work it would be required to perform, and also as to the quality and grades of wheat grown in the vicinity of Leland, and that would be likely to be cleaned by the machine. The implied warranty of fitness for the use intended is not necessarily in conflict with the express warranties.
The answer contained no charge of fraud. It may be that Weisman falsely represented the machine to be self-adjusting and automatic in its operation, but advantage cannot be taken thereof by appellee upon the theory of an implied warranty. The evident theory of counsel for appellee is that, as plaintiff’s salesman was fully informed that the officers of defendant desired only to purchase a machine that was self-adjusting and automatic in its operation, the law would imply therefrom that the machine sold was so constructed. These matters do not go to the question of implied fitness. We find nothing in the written order or warranties printed on the back thereof indicating that defendant desired to purchase a self-acting and automatic operating cleaner. If such was the understanding of the parties, it should have been included in the contract. We think the submission of this issue to the jury was both erroneous and prejudicial.
Other questions discussed by counsel are without merit, or are not likely to arise upon a retrial of this case; and therefore we omit discussion thereof. For the reason already indicated, the judgment of the court below must be and is — Reversed.
