147 Iowa 29 | Iowa | 1910
At the date of the transaction under inquiry the plaintiff was a retail dealer in farm implements at Carroll, Iowa, and the defendant a wholesale dealer at Omaha, Neb., in like merchandise, including the Kemp manure spreader, manufactured by a concern known as the Richardson Manufacturing Company at Worcester, Mass. Plaintiff gave defendant a written or printed order for a Kemp spreader, in which the only reference to a warranty or representation of quality is in the following words: “We agree to receive the following mentioned below and settle for the same on arrival by notes due as per terms marked below. . . . All goods subject to the warranties published in factory’s catalogue and circulars.” There is evidence to the effect that the Richardson Manufacturing Company in its advertising literature described the virtues and triumphs of the Kemp spreader in the following terms: “The Worcester Kemp manure spreader has had nearly thirty years of this field experience. Every part has been demonstrated in actual field work; it is strong, simple and mechanically right. It does its work with a certainty that is not disturbed by any possible local conditions. The Worcester Kemp is well built in every detail. Every particle of material has its office to perform, and forms its part of the magnificent whole.” The machine was shipped to plaintiff, who, after having it in store for a time, made a tentative sale thereof to one Schwaller for use on a farm. On being tested by Schwaller, it proved to be incapable of doing good work, and was returned to the plaintiff, who, after
At the close of the testimony, the trial court withdrew from the jury the issue upon the alleged' express warranty, but submitted the case for a verdict upon the alleged breach of an implied warranty. On this question it instructed the jury in substance that if the machine was ordered for the purpose of resale, and at the time of such order plaintiff had no opportunity to inspect and ascertain the quality of such spreader, the law would imply a warranty that it was reasonably fit for the purpose for which it was designed, and was in a merchantable condition, and that, if on a reasonable trial it proved to be materially defective in the respects named, plaintiff was entitled to recover his damages so sustained. The jury found for the plaintiff.
We find no reason for interfering with the judgment below, and it is affirmed.