54 Iowa 36 | Iowa | 1880
The plaintiff's sold to the defendant the threshing machine in question, with the following warranty.
It is agreed by the attorneys for the plaintiff and the defendant that all of the evidence touching the point in controversy is substantially as follows:
“That on the 12th of July, 1877, the defendant received the threshing machine of plaintiff’s agents, Benham & Smith, at Muscatine, Iowa, and executed his notes and mortgage in the petition described; that immediately after receiving the machine defendant threshed wheat, oats and rye for several parties in the vicinity of Muscatine, sent word to plaintiff’s agent that it did not clean the grain well, and a special agent from plaintiff’s shop in Chicago came and saw the machine threshing rye on Muscatine Island, and put in a new sieve. The defendant then took his machine to his residence in Louisa county, about twenty-five miles from Muscatine, and threshed for different farmers in that vicinity during the ensuing two months; that while in the defendant’s hands the machine did not work satisfactorily within the meaning of the contract — was of heavy draft — did not thresh wheat clean and did not clean the grain well as it left the machine, and was of faulty construction; that about the — day of September, 1877, defendant saw plaintiff’s agent at Muscatine and complained that the ma*38 chine did not work well. Thereupon said agent agreed to send to plaintiffs at Chicago and have a special agent come from there and go to Louisa county, and test and repair the machine, on the following Wednesday; that uj)on the following Wednesday the Chicago special agent came, and with Mr. Benham, of Benham & Smith, started for Louisa county to meet defendant and fix the machine;- that they met defendant about eight miles from Muscatine with the machine; that defendant claimed that Tuesday was the day agreed upon for the test, that -he had waited for them on Tuesday and they had failed to come on that day; that the defendant refused to let the Chicago agent attempt to try or repair the machine, saying that he had already experienced enough trouble with the machine, and did not want to be bothered with it any longer, and he brought it on to Muscatine and .demanded of plaintiff’s agents, Benham & Smith, the surrender of his notes, and offered upon such surrender to deliver up the machine; that Benham & Smith refused to accede to this demand, and that defendant thereupon stored the machine with one Murphy, and served the notices in his answer set forth.
That plaintiff’s agents then obtained a job of threshing wheat and oats at Muscatine in order to test the machine, and asked the defendant to be present at such test and give friendly assistance therein, and that he refused to do so. Plaintiff’s agents then took the machine from the jffaee of storage, had some repairing done upon it, and did said test job of threshing, which occupied a day and a half, and then returned the machine to the place of storage, where it still remains. On such test the machine threshed oats well, but did not thresh and clean the wheat well, leaving a good deal of wheat in the straw it threshed.”
The notice served upon plaintiff and upon Benham & Smith is as follows:
“ You will take notice that I have stored with Murphy, on Iowa Avenue, in the City of Muscatine, Iowa, the Chicago Pitts Threshing Machine you delivered to me on or about*39 July 12, 1877, said machine failing to comply with the terms of your contract and warranty. The same is now subject to your order and I demand of you a return of the notes I gave you for said machine, as well as $30.50 freight and charges paid by me to you on the same.”
The court made the following finding:
“ It is somewhat doubtful whether the defendant afforded full opportunity for the trial of the machine under the terms of the contract. But however this may be, he did not make such a tender of the machine as would entitle him to rescind the contract. The plaintiff had the option of refunding the payments or furnishing another machine, in case that already furnished did not work satisfactorily. But the defendant prevented the exercise of this option by his refusal to surrender the machine unless the notes were returned. He made the return of the notes the indispensable condition of the surrender of the machine. That the machine failed to work ‘ satisfactorily,’ within the meaning of the contract, is quite evident. I think it may be said the machine was in some respects wholly defective, and that the defendant thereby sustained damages at $315, and render judgment and decree as prayed for the remaining sum of $315, with ten per cent interest from July 12, 1877, with special and general execution as may be necessary.”
In accordance with this finding judgment was rendered in favor of plaintiff for $315, with interest and attorneys fees, amounting in all to $389.85.
The defendant insists that he should be altogether discharged from the notes as upon a rescission of the contract. The contract of warranty stipulates that, “ if they are unable to make it operate well and the fault is in the machine, it is to be taken back to the place of delivering, and the payments refunded, or another machine of the same make furnished that will answer the warranty.” It is evident that the option is thus given to the plaintiff to refund the payments or furnish another machine that will answer the warrantv. Before the
Affirmed.