191 Iowa 987 | Iowa | 1921
Plaintiff, in reply, denied the allegations of defendant’s answer and counterclaim, and, by way of further answer to the allegations of the counterclaim, alleged that the gasoline engine was traded by the Lennox Machine Company of Marshalltown, Iowa, to the defendant for an old engine and a note for $113.40 made payable to the plaintiff; that plaintiff was the agent of the Lennox Machine Company, and in all the negotiations with the defendant, acted in his capacity as such, and not for himself; that the defendant, after discovering the alleged defects in the gasoline engine, retained the same, and caused it to be taken to pieces, to its injury and damage; and that, by reason thereof, the defendant is estopped to assert a claim for damages against the plaintiff.
The alleged errors presented for review involve numerous
I. Defendant’s motion to strike parts of the defendant’s answer and counterclaim was without merit, and therefore properly overruled. It is impracticable to discuss all of the alleged errors relating to the admission of evidence. They have all been carefully considered. It may well be doubted whether error can be found in any of the rulings complained of, and we are satisfied that, if any appears, no prejudice resulted. The court cannot always avoid technical error in ruling Upon objections to testimony, and a reversal is never granted on account thereof, if whatever presumption of prejudice may arise therefrom is overcome. Some of the answers to the questions against which objections was lodged were, perhaps, the statement of a conclusion, but they were without prejudice. No reversible error was committed by the court in rulings upon objections to evidence.
II. Plaintiff’s motion for a directed verdict, while containing numerous grounds, was based principally upon the contention of counsel that the gasoline engine was purchased by the defendant of the Lennox Machine Company through the plaintiff and one Clemmens as its agents, and that plaintiff made no representations or warranty of any kind to the defendant. Plaintiff admitted that he sold gasoline engines as a side line, and defendant- testified that he met plaintiff at the farmers’ elevator in Ellsworth, shortly before the note was given, and that plaintiff wanted to sell him a feed grinder; and that, during the conversation, plaintiff said that he would sell him a six-horse engine, to operate the grinder; that, a short time thereafter, plaintiff and Clemmens came to defendant’s farm, and offered to sell him a new engine, taking his old engine as part payment of the purchase price; that, after some negotiations in which the representations and warranties relied upon were made, an agreement to purchase was arrived at, and, some weeks later, the engine in controversy was delivered to the defendant.
It is manifest from the foregoing statement that the question whether the plaintiff acted.in his individual capacity or as the representative of the machine company, in making the sale, was a disputed question of fact, to be decided by the jury. Dickinson County v. Mississippi Valley Ins. Co., 41 Iowa 286; Sandusky M. & A. Works v. Hooks, 83 Iowa 305. The court submitted plaintiff’s theory of the evidence to the jury, both upon its own motion and in the form of requested instructions. The exceptions preserved by counsel to the court’s instructions relate principally to the question of agency, and are based upon the thought that the evidence was insufficient to carry this issue to the jury. The court, at the request of plaintiff, instructed the jury as follows:
“A. If the plaintiff was the agent of the-company from whom the defendant received the engine in question, and had no title to the engine for which the defendant exchanged his old engine, then you are instructed that the plaintiff cannot be held liable on a warranty made by said machine company, if one was made, but that the remedy of the defendant, if one he has, is against the said machine company, and not against the plaintiff.
“B. If you find from the evidence that the defendant exchanged his old engine for a new one, and that such exchange was between the said defendant and the said Lennox Machine Company direct, then the fact, if it be a fact, that the engine*991 was not what the defendant bargained for would not defeat the plaintiff, if you find from the evidence that the plaintiff loaned the money evidenced by the note to the defendant, or advanced the said money to the Lennox Machine Company at the defendant’s request.”.
The issue was, as above shown, submitted to the jury by instructions favorable to the plaintiff. Thó finding of the jury is upon disputed facts, and binding upon this court.
Other matters are argued by counsel, but they do not merit special consideration. We are convinced, upon the whole record, that plaintiff had a fair trial, and that the court committed no reversible error. The judgment is — Affirmed.