Sandwich Manuf'g Co. v. Trindle

71 Iowa 600 | Iowa | 1887

Rothrock, J.

The printed warranty upon which the plaintiff relies is as follows: “ The Eeliance self-binding harvester is purchased and sold subject to the following warranty and agreement, and no one has any authority to add to, abridge, or- change it in any manner: That it is well made of good material, and with proper management it is capable of doing first-class work; that the purchaser shall have one day to give it a fair trial, and, if it should not work well, written notice, stating wherein it fails, is to be given to the agent from whom it is received, and to the Sandwich Manufacturing Co., at Sandwich, Illinois, and reasonable time allowed to get to it, and remedy the defects, if any, (the purchaser rendering necessary and friendly assistance,) when, if it cannot be made to do good work, it shall be returned to the place where received, and a new machine given in its place, or the notes and money refunded, which, when done, shall be the settlement of the whole transaction. Continued possession of the machine, or failure to give notice as above, shall be evidence that the warranty is fulfilled.”

1. Sale of Machine: wab.ra.ntv: instructions. The facts are that the defendant made an oral contract with plaintiff’s agent, by which he was to take the machine, and pay $175 for it after trial if it did good work, ¶ * n ( 1*1 T T . . , andii it did not do good work lie was to return it. 0 The printed warranty, above set out, was delivered to the defendant by the agents wlio.sold him the machine, after the oral contract was made, and at the time of the delivery of the machine. The court instructed the jury upon the contract,,as claimed by the defendant, and also upon the theory that the printed warranty was all of the contract, and that it could not be varied by parol. Appellant insists that the evidence conclusively shows that the sale was made under the written warranty, and that it was erroneous to instruct the jury on any other theory. We are unable to discover that there was any material variance between the written warranty and that which the defendant claimed as an oral warranty, or rather oral contract of sale. Moreover, it does not appear that any objection was made by plaintiff to the parol evidence of the sale and warranty. The plaintiff was not prejudiced by the instructions complained of.

2. -: -: substantial compliance. It is urged that the court erred in instructing the jury that a substantial compliance with the contract was all that was required of the defendant. We think there was ... ... ,, „ .. no error m this, especially as the jury were xuliy instructed as to what acts the defendant was required to perform to comply with the contract.

failure: notice: return of machine, It is said that the defendant is liable for the machine because he failed to return it in proper time. The facts are that the defendant took the machine to his farm ' on Friday. The agents who sold the machine . , . _ sent an expert with the detendant to set up the machine. On Saturday morning the machine did not work well. One of the agents was present, and informed the defendant that he would have an expert there on Monday. On that day the agents appeared with the expert, and the defendant continued to use the machine until Friday evening, when he laid it aside, and borrowed a machine to finish cutting his harvest. lie returned the machine in controversy on Monday following. The jury were warranted from the evidence in finding that the machine would not do good work. The plaintiff’s agents and experts were with the defendant when the machine was set up, and for some reason they thought it necessary to be on the ground on the two following days. There was no necessity, therefore, for the defendant to give notice that the machine would not work. And the court correctly instructed the jury that, if the machine would not work properly, the defendant was bound to return it within a reasonable time. This was what was required by the written warranty upon wbicb the plaintiff relies.

We find no error in the case. Affirmed.