138 Iowa 22 | Iowa | 1908
In August, 1905, plaintiff entered into negotiations with defendant respecting the purchase from defendant of an automobile which had already been in use for one year, and for which plaintiff was to give in exchange an electric automobile at the agreed price of $500 and pay in cash $1,000. Being unable to make the cash payment, the parties made an arrangement, on September 11th, by which plaintiff gave his note secured by a mortgage on the machine for a portion of the cash payment. This arrangement was made after plaintiff had tried the machine, but the evidence tends to show that it involved an oral warranty by defendant that the machine was not defective in construction, was in good running condition, and durable, suitable for traveling, and of twenty-five horse power. Plaintiff also claims that there was a warranty that the machine, reasonably loaded, had sufficient power to climb the hills on country roads. Defendant’s representative undertook to transport plaintiff in the machine from Des Moines, where the purchase was made, to Casey, the place of plaintiff’s residence, and it appears that on the way there were mishaps causing some delay. It also appears that at Casey the machine was delivered to one Williams by plaintiff’s direction, and that defendant’s representative was later called to that place to make further repairs on the machine. Plaintiff testified that after this last visit of defendant’s representative, and in the latter part of
Counsel do not differ as to the rules of law applicable to the case. It is agreed that in this State breach of warranty is a ground for rescission, and that the right to rescind must be exercised within a reasonable time after the warranty is broken. Counsel for appellant contend that the question as to reasonable time is for the jury; but where there is no conflict in the evidence as to the facts, and it appears that the time which has elapsed between a knowledge, on the part of
It is contended for appellant that no waiver of his right to rescind was pleaded by defendant. But the question is not one of waiver, but of election. If within a reasonable time appellant failed to take any steps toward rescission, he must be conclusively presumed to have elected to rely upon damages for breach of warranty, rather than on rescission.
It is also contended for appellant that the court had no power on its own motion to direct a verdict for the defendant, as the right of defendant to rely upon waiver of rescission was personal. But, as already pointed out, counsel for defendant had asked a directed verdict on this ground, and the court unquestionably had the right, although it had previously overruled this motion, to take the case from the jury when it became apparent, for the reasons pointed out by the court, that a verdict for the plaintiff could not be sustained.
The judgment is affirmed.