122 Iowa 699 | Iowa | 1904
The threshing outfit purchased of the plaintiff consisted of a second-hand steam engine, for which the defendant agreed to pay $1,000, and a separator, a grain weigher, an automatic stacker, a self-feeder, and a water tank, together with a tnnk, pump, belting, and appliances ne
The machinery was delivered to the defendant either on the 30th or 31st day of July, 1895, and his possession and use thereof continued for two years, at least; but it does
This conduct of the plaintiff was clearly a waiver of the terms of the contract with reference to the conclusive effect of continued possession of the machine, and with reference to-the notice required by the contract. By the explicit terms of the contract, six days’ possession or use after delivery to the purchaser was conclusive that the warranty was fulfilled. If in actual possession, it made no difference whether a trial of the machine was made or not. This must be so, or we must entirely disregard the express stipulation as to possession. Murphey v. Russell, (Idaho) 67 Pac. Rep. 421. Morley was a representative of the company, and notice to him or his knowledge of the condition of the machine and its operation after delivery to the defendant was binding upon the company, and no other notice was necessary. Harvesting Machine Co. v. Brower, 94 Iowa, 145; Briggs v. M. Rumely Co., 96 Iowa, 202; Warder, Bushnell & Glesner v. Robertson, 75 Iowa, 585; Pilsinowsky v. Beardsley, Hill & Co., 37 Iowa, 9. Under the facts in this case, such is the rule when the contract provides that no one has authority to change the terms of the contract, or waive any of the provisions. Ruthven v. Ins. Co., 102 Iowa, 550; Peterson v. Reaping Machine Co., 97 Iowa, 148; Nichols v. Wiedmann, 72 Minn. 344 (75 N. W. Rep. 208); Baker v. Nichols & Shepard Co., 10 Okl. 685 (65 Pac. Rep. 100); Farnum v. Ins. Co., 83 Cal. 246 (23 Pac. Rep. 869, 17 Am. St. Rep. 233); Ins. Co. v. Norton, 96 U. S. 234 (24 L. Ed. 689).
The provision for the return of the machine was waived, and such waiver carried with it the' provision that continued possession of the machine for six days should be conclusive evidence that it had fulfilled the warranty. Peterson v. Machine Co., supra; Champion Mach. Co. v. Mann, 42
There having been a breach of the contract of warranty, the defendant is entitled to recoup the damage he has sustained on account thereof, which would be the difference be-
The evidence shows that the defendant has been 'damaged to the full amount of the unpaid purchase price, and the judgment should therefore be, and it is, aeeirmed.