88 Iowa 607 | Iowa | 1893
July 3,1889, the defendant entered into the following written contract:
“McCormick Harvesting Machine Company will ship for the undersigned on or before July 10, 1889, one of their latest improved 5-foot H. binders, including the usual extras, consigned to the care of Gr. M. Armfield, at Redfield, the undersigned agreeing to pay the McCormick Harvesting Machine Company $130 cash, with interest thereon at the rate of-per cent. per annum from date until due, and at the rate of-per cent, thereafter until paid. These machines are all warranted to be well made, of good material, and durable with proper care. If, upon one day’s trial, the machine should not work well, the purchaser' shall give immediate notice to said McCormick Harvesting Machine Company, or their agent, and allow time to send a person to put it in order. If it can not then he made to work well, the purchaser shall return it at once to the agent of whom he received it, and his payment, if any has been made, will be refunded. Continuous use of the machine, or use at intervals through harvest season, shall be deemed an acceptance of the machine*609 by the undersigned. Dated the 3d day of July, 1889. Postoffice, Adel; county, Dallas; state, Iowa.
“D. M. Brower.”
Tbe plaintiff claims that the machine in all respects conformed to the requirements of the contract; that delivery of it was made thereunder; and that it was received and accepted by the defendant, and he refused to pay therefor. The defendant admits the purchase of the machine, the execution of the written contract, and that he has not paid for the machine. He avers that the machine was purchased of the plaintiff through George Armfield, its agent at Eedfield, Iowa. He sets out the contract, and alleges that when the machine was delivered to him it was set up by the plaintiff by its agent, George Armfield, assisted by one Charles Armfield, an employee of George Armfield. That the latter attempted for about twelve hours to make the machine work well, but was unable to do so, and it did not work well, and said agent left the defendant, knowing that the machine did not work well. That when he left, the defendant notified him that the machine did not work well; that he would not keep it and pay for it if he or the plaintiff did not make it work properly, and requested him to notify said George Armfield, the plaintiff’s agent, of these facts, and to furnish a suitable person to make the machine work properly. That he then and there asked Charles Armfield to make said machine work well. That the latter told the defendant if he would continue to use the machine it would work all right. That he refused to remain and fix the machine so it would work properly, but promised to come back in a day or two, and make the machine work well. That, as requested by the plaintiff’s agent, he did retain the machine for about four days, and used every effort to make it work well, but was unable so to do. That the plaintiff, though notified in accordance
After Charles Armfield left the defendant’s place on Tuesday, the sixteenth of July, the defendant continued to work the machine up to the following Friday morning, and failed to make it work well. On the latter day he notified the agent of whom he purchased it of its failure to work, and told him he would return the machine the next day, but the agent requested him not to do so, but to keep it on his place for awhile; that he would see the company, and thought they would knock it down, and take it to Kennedy, and ship it to Des Moines. It is claimed that this notice was not given immediately after the one day’s trial was had. True it is that two days intervened after the one day’s trial, and before notice of the failure of the machine to work well was given to the agent, and the appellant claims that such notice was too late. The notice was required to be given “immediately” after the one day’s trial. That would demand that the defendant act promptly in giving his notice after the time for trial had passed. Whether or not he did so act must be determined by -the jury in view of all the facts of the case. McCormick Harvesting Machine Co. v. Russell, 86 Iowa, 556. If it be conceded that the notice to the agent, George Armfield, was in time, then, under the contract, it was incumbent on defendant to afford an opportunity to plaintiff or its agent to send a man to fix the machine so that it would work properly. The evidence, without any conflict,
IY. The defendant in -his answer, avers that the plaintiff’s agent “verbally agreed to receive said machine of the defendant, where it was on defendant’s premises at that time.” It is not necessary, in view of the issues, to determine whether — even if the'defendant had so far complied with the contract as to entitle him to return the machine — his return of it to the town of Redfield, ten days after he decided not to keep it, would have been a compliance with the terms of the contract. For the reasons heretofore stated, at the time he thus undertook to return it, he had no right so to do.
VI. The sixth and eighth instructions are erroneous in ignoring the provision of the contract that one day’s trial of the machine was necessary before notice could be given that it failed to work. well. Under the wording of the sixth instruction the jury would be justified in finding that it was not necessary to try the machine for a day but, if it was “fairly tested” for the half day that Charles Armfield was at the defendant’s place, it would be a compliance with the contract in that respect. We have already stated that it was incumbent on the defendant to comply with the contract as to a trial of the machine before he was entitled to give notice.
Many other errors are assigned that we cannot specially consider. Some of them raised the same questions already passed upon, others are not well grounded, and some of the questions presented we ought not to discuss in view of another trial. The judgment of the court below is reversed.