83 Iowa 305 | Iowa | 1891
Lead Opinion
IY. Other questions in the case are not considered, for the reason that it does not appear that they will necessarily arise upon another trial; and for another-reason these questions ought not to be considered. We have no arguments for the defendants. When cases are not argued on both sides, we consider only such questions as are necessary for their disposition. If the-case may be disposed of on a single point, we discuss no others, for the reason that rulings ought not to be-made, further than is absolutely necessary, upon questions not fully discussed.
The judgment of the district court is bevekse».
Dissenting Opinion
(dissenting). — The second division of the answer alleges that the promissory note in suit was given by the defendants for a cornsheller which was sold by the plaintiff to defendants; that, as a part of the transaction, the sheller was warranted to operate-well, and to do good work, with a horsepower then, owned by the defendants; that the sheller delivered was not as contracted for; that it could not be used with the horsepower of the defendants, nor with any other-power; that it wholly failed to comply with the warranty; that when such failure was ascertained the sheller was returned to the agent of the plaintiff, and has never since that time been in the custody nor under-the control of the defendants. Three notes were given for the sheller, two of which have been paid, and the third is the one in suit. The evidence as to the war
The defendants made no attempt to show that the man of whom they purchased (Luce) was in fact the agent of the plaintiff, but endeavored to show that he acted as such in making the sale. ' The evidence as to the agency of Luce, bn the part of the defendants, is meager, but, in my judgment, it ■ was sufficient to authorize the jury to find that in what he said and did to effect the sale he claimed to act as the agent of the plaintiff. When the defendants applied to him for a sheller, he informed them that he “was not agent for any sheller except the Sandusky sheller.” When the notes were taken for the sheller, Luce took them, and told the defendants it was “the first machine he had sold for that company, and he wanted to have the notes made out and fix the business up.” The notes were made payable to the plaintiff. The first two notes were collected by Luce. There is no evidence which shows, or tends to show, that, at the time of the transaction the defendants knew that Luce was not the agent of the plaintiff. While the evidence stated would not alone be sufficient to establish an agency as against the plaintiff, yet the defendants were justified in believing that Luce acted as agent for it. That being the case, when the plaintiff seeks to enforce the collection of the note with knowledge of the fact, it brings itself within the rule of the Ashbaugh and Peterson cases cited in the opinion of the majority. The plaintiff is a party to the note, and is not an innocent holder. That is the well-established rule, which was explicitly. recognized in the Peterson case. The answer pleads a failure of consideration, and the evidence sustains the plea. The plaintiff took the note